Opinion
DOCKET NO. A-5049-11T2
02-19-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LISA MULLIGAN, Defendant-Appellant.
Denise Lanchantin Dwyer, attorney for appellant. Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Waugh.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 12-037.
Denise Lanchantin Dwyer, attorney for appellant.
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In this appeal, we consider whether the Law Division judge possessed the authority to extend the time to file a municipal appeal.
Defendant was charged and convicted in municipal court of failing to cause her son, then over sixteen years of age, to attend school, N.J.S.A. 18A:38-31, and the maximum fine was imposed. On March 20, 2012, at the conclusion of the municipal trial, prior defense counsel expressed his client's intent to appeal and sought a stay of the fines pending the filing of an appeal with the Law Division:
Defendant has since retained new counsel.
[DEFENSE COUNSEL]: Judge, I just ask that you -- obviously we're going to appeal and I ask that Your Honor just stay any fines pending the appeal.
. . . .
[PROSECUTOR]: No objection, Your Honor.
THE COURT: I'm not going to waste your time, you['re] running over to the courthouse, you know, to [seek an emergent stay]. But I'm going to indicate for the record so that when it goes up that the Superior Court Judge has an understanding of what my calculations were.
The statute says $25 for the first day and $100 each day thereafter. So for the first day it would be $25 and then it would be for the 14 days it would be $100. So a total of $1,425 by my calculations and $33 costs. Everything is stayed, so you don't have to pay anything. All right.
You have a right to appeal and I'm sure you'll take care of that in due course. Now, if you do not then what has to happen is that you have to present yourself here
for payment or a payment plan, either or, okay?
Defense counsel did not file a timely appeal. Instead, on April 24, 2012, defendant's current attorney appeared on defendant's behalf in municipal court, seeking, among other things, the judge's expansion of the time to file an appeal or other relief from the judgment. The judge determined that he did not have the authority to expand the time to file an appeal, and he denied defendant's other requests.
On May 1, 2012, defendant filed a notice of appeal and a motion to extend the time to appeal in the Law Division. In support of the motion, defendant filed a certification in which she claimed her attorney understood she wanted to appeal and that "he would file the required paperwork for that appeal." She also certified that she sent an email to her attorney, confirming her desire to file an appeal, a few days after her municipal conviction.
Specifically, defendant asserted that she sent an email to her attorney "within a few days of the [March 12, 2012 municipal] hearing asking if he needed anything else from me in connection with the appeal" and that the attorney acknowledged receipt.
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On May 23, 2012, the Law Division judge entered an order dismissing the appeal; we interpret this disposition as including the judge's determination that he did not have the authority to expand the time to file an appeal, even though no opinion was rendered and no order entered denying defendant's motion to extend the time frame.
Defendant filed a timely appeal with this court, arguing:
I. THE LAW DIVISION SHOULD HAVE EXERCISED DISCRETION AND GRANTED DEFENDANT'S MOTION FOR LEAVE TO APPEAL OUT OF TIME.Because we reject the argument contained in Point I, the issues raised in Points II and III are not properly before us. We, thus, express no view about the merit of defendant's argument that the child's age precluded her conviction.
II. THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A CONVICTION AND REQUIRES ACQUITTAL.
A. Standard Of Appellate Review.III. LISA MULLIGAN'S CONVICTION IS CONTRARY TO THE PURPOSE OF THE TRUANCY STATUTES AND CONTRADICTORY TO THE WELL-DEFINED PUBLIC POLICY PROTECTING STUDENTS WITH DISABILITIES.
B. The Parent Of A 16 Year Old Student Cannot Be Convicted Under N.J.S.A. 18A:38-31.
Rule 3:23-2 requires that a notice of appeal of a municipal court judgment must be filed with the Law Division "within 20 days after the entry of the judgment." Rule 1:3-4(c) prohibits enlargement of this time frame. Even if we were to agree with those decisions that have enlarged the twenty-day time limit when the defendant was ignorant of the right to appeal, see State v. Martin, 335 N.J. Super. 447, 451-52 (App. Div. 2000); State v. Gonzalez, 186 N.J. Super. 609, 615-16 (Law Div. 1982), that circumstance is not present here. Defendant was aware of her appeal rights; she asserts only that her counsel at the time failed to file a timely appeal. We decline the invitation to expand the time to appeal a municipal judgment because of attorney error.
Any opportunity defendant may have to avoid the consequences of the conviction must be pursued by way of a petition for post-conviction relief or other post-judgment application.
The Law Division order dismissing the untimely notice of appeal is affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office
CLERK OF THE APPELLATE DIVISION