January 8, 2013
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TRISTAN LEWIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 12-03-448.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2012 -
Before Judges Messano and Lihotz.
On our leave granted, defendant Tristan Lewis appeals from a May 22, 2012 order denying his motion to dismiss Middlesex County Indictment No. 12-03-448, charging him with fourth degree bail jumping, N.J.S.A. 2C:29-7. The indictment resulted from defendant's guilty plea to several violations of an earlier probationary sentence (VOP). During the VOP hearing defendant admitted, among other things, that he failed to appear at a hearing held on December 5, 2011. The trial court stayed its order pending interlocutory review.
While defendant's appeal was pending, the State orally moved to dismiss the indictment. Neither defendant nor his attorney was present. The trial judge granted the State's motion.
On appeal, defendant argues:
THE PLAIN LANGUAGE OF THE BAIL JUMPING STATUTE, N.J.S.A. 2C:29-7, STATES THAT IT DOES NOT APPLY TO A PROBATIONER'S FAILURE TO APPEAR. AS SUCH, THE INDICTMENT SHOULD BE DISMISSED.
SHOULD IT BE DETERMINED THAT MORE THAN ONE REASONABLE INTERPRETATION OF N.J.S.A. 2C:29 -7 MAY BE MADE, OR THAT THE STATUTE IS AMBIGUOUS, THE STATUTE MUST BE CONSTRUED AGAINST THE STATE AND IN FAVOR OF THE DEFENDANT, WHICH REQUIRES THAT THE INDICTMENT BE DISMISSED.
ALLOWING THE PROSECUTION OF DEFENDANT, A PROBATIONER, UNDER N.J.S.A. 2C:29-7 WOULD REQUIRE AN EX POST FACTO JUDICIAL ENLARGEMENT OF THE STATUTE, WHICH WOULD VIOLATE DUE PROCESS.
THE TRIAL COURT ERRED IN APPLYING AN UNPUBLISHED AND DISTINGUISHABLE OPINION, STATE V. MARCUS KIRK, TO THE DEFENDANT'S CASE, THEREBY INTERPRETING N.J.S.A. 2C:29-7 BEYOND ITS PLAIN LANGUAGE, WHICH AMOUNTED TO AN IMPERMISSIBLE "IMPLICATION" OF THE LEGISLATURE'S INTENTIONS, IN VIOLATION OF DUE PROCESS (Partially raised below).
We conclude defendant's appeal must be dismissed as moot. Also, we note defendant argues the dismissal of the indictment should be with prejudice, a question not addressed by the State in its brief. We decline to review this issue, as we may not anticipate the existence, or lack thereof, of facts not otherwise before us.
The Court has instructed that appellate review will not entail rendering of advisory opinions or an exercise of jurisdiction "'in the abstract.'" State v. Harvey, 176 N.J. 522, 528 (2003) (quoting State v. Gartland, 149 N.J. 456, 464 (1997)). Generally, "'courts should not decide cases where a judgment cannot grant relief.'" Marjarum v. Twp. of Hamilton, 336 N.J. Super. 85, 92 (App Div. 2000) (quoting Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243-44 (App. Div. 1993)). "A case is technically moot when the original issue presented has been resolved, at least concerning the parties who initiated the litigation." DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring). "An issue is 'moot' when the decision sought in a matter, when rendered, can have no practical effect on the existing controversy." Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58 (App. Div. 2006) (quoting New York Susquehanna & W.Ry. Corp. v. State Dep't of Treasury, Div. of Taxation, 6 N.J. Tax 575, 582 (Tax Ct. 1984), aff'd, 204 N.J. Super. 630 (App. Div. 1985)).
We are aware "the New Jersey Constitution does not restrict the exercise of judicial power to actual cases and controversies." State v. McCabe, 201 N.J. 34, 44 (2010) (citing Gartland, supra, 149 N.J. at 464; N.J. Const. art. VI, § 1, ¶
1). At times, the merits of an issue will be considered notwithstanding its mootness at the time of review. Specifically in criminal cases, the Court has held "'[t]he stigma of arrest, conviction and jail sentence does not become moot simply because . . . the sentence has been served and completed[.]'" Gartland, supra,149 N.J. at 464 (quoting Bower v. State, 135 N.J.L. 564, 568 (S. Ct. 1947)). Further, the Court has decided issues that present a matter of "significant public importance," McCabe, supra, 201 N.J. at 44-45, or issues "likely to recur" should be considered although moot. Gartland, supra, 149 N.J. at 464.
Following our review of this matter, the relief sought by defendant on appeal has been granted. We find no basis to consider the questions presented on appeal. Defendant was not tried and convicted, only charged; however, the indictment was dismissed by the State. We do not agree the appropriateness of presentment raises a recurring event*fn1 or a significant public question.