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State v. Salib

Superior Court of New Jersey, Appellate Division

July 2, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
AMIR SALIB, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 8, 2013

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Municipal Appeal No. 26-11.

Amir Salib, appellant pro se.

Megan B. Kilzy, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Stephanie Davis-Elson, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Before Judges Waugh and St. John.

PER CURIAM

Defendant Amir Salib appeals an October 12, 2011 order of the Law Division dismissing the appeal of his municipal court conviction. We affirm.

I.

The record discloses the following facts and procedural history leading to the determination under review.

On April 19, 2011, a hearing was held before the municipal court judge. At that hearing, defendant made it apparent that he planned to represent himself. The following dialogue transpired:

THE COURT: You're [going to] represent yourself, right?
MR. SALIB: So far, yes, Your Honor.
THE COURT: All right.
MR. SALIB: If I need the assistance of an attorney I would inform the Court --
THE COURT: Okay.
MR. SALIB: -- at such time.

On May 24, 2011, a hearing was held on defendant's motion to dismiss for not providing discovery. The motion was denied by the municipal court judge. Defendant did not appear for his June 23, 2011 hearing, a bench warrant was issued and bail was set at $500. On June 28, 2011, another hearing was held, defendant appeared, his warrant was recalled, and a trial date was set. On July 19, 2011, a trial was conducted before the municipal court judge at which time defendant entered his appearance stating, "Amir Salib, pro se -- defendant pro se."

Defendant was found guilty of speeding in violation on N.J.S.A. 39:4-98. He received a sentence of 30 days license suspension, a $200 fine, and $33 of court costs. Defendant's driving abstract is extensive. His license had previously been suspended twenty-eight times, although not in the recent past.

Defendant filed a notice of appeal with the Law Division on July 20, 2011, and a briefing schedule was set by the Law Division judge requiring the defendant to file a brief by September 19, 2011. R. 3:22-8(b). Defendant requested an extension, and the Law Division judge granted him a two-week extension, giving defendant until October 3, 2011, to file his brief. On September 30, defendant requested a thirty-day extension, claiming he lost certain research. The extension was denied by the Law Division judge. The judge determined, "based on reading of the submitted transcripts and the numerous adjournments in the court below, the Motion [for extension] to be a ploy to extend the time before the potential imposition of [defendant's] sentence."[1] Defendant did not file his brief by October 3, 2011. The judge dismissed the appeal and denied any stay of sentence. It is from this dismissal that defendant appeals.

II.

Defendant raises the following points for our consideration in his pro se brief.

POINT I
THIS CASE SHOULD BE DISMISSED FOR THE LOWER COURT FAILURE TO ADVISE THE DEFENDANT OF HIS RIGHT TO HAVE AN ATTORNEY DURING THE TRIAL.
POINT II
THE JUDGE ABUSED HIS DISCRETION AND ACTED ON HIS BIAS TOWARD THE DEFENDANT ABBOGATING THE SUPREME COURT OF NEW JERSEY'S DIRECTIVE IN STATE V. MORAN.
POINT III
THE MUNICIPAL COURT ERRED IN NOT GRANTING DEFENDANT'S DISCOVERY.

Defendant's first point is bellied by the record which indicates his acknowledgement of his right to counsel.

The Law Division judge entered an order dismissing the appeal for failure to comply with the court's briefing schedule. R. 3:23-8(b). Defendant failed to prosecute his appeal and we agree the Law Division judge took appropriate action in dismissing the appeal.

It is well settled that an issue not briefed is deemed waived. Roa v. LAFE, 402 N.J.Super. 529, 545 (App. Div. 2008) (citing Finderne Heights Condominium v. Rabinowitz, 390 N.J.Super. 154, 166 (App. Div. 2007)).

Defendant's contention of an improper dismissal of his appeal is raised for the first time in his reply brief and is thus not properly before us. [2] State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed.2d 256 (1970); Goldsmith v. Camden Cnty. Surrogate's Office, 408 N.J.Super. 376, 387 (App. Div.), certif. denied, 200 N.J. 502 (2009); Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J.Super. 590, 596 (App. Div.), certif. denied, 168 N.J. 294 (2001). Additionally, although defendant has a point heading in his reply brief relating to this issue, it was not substantively briefed by defendant on appeal, and therefore is waived. See Sklodowsky v. Lushis, 417 N.J.Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 2:6-2 (2013).

We need not address the other issues raised by the defendant since we agree that his appeal in the Law Division was properly dismissed. Any opportunity defendant may have to avoid the consequences of his conviction must be pursued by way of a petition for post-conviction relief or other post-judgment application.

The Law Division order dismissing the defendant's appeal for failure to comply with the requirement to timely file a brief is affirmed.


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