Opinion
DOCKET NO. A-3220-13T1
07-25-2016
KENNETH MARCOTTE, Plaintiff-Appellant, v. TOWNSHIP OF EDISON POLICE DEPARTMENT, TOWNSHIP OF EDISON, PATROLMAN V. ARAVENA, OFFICER P. SMITH, SERGEANT CIMMINO, and PATROLMAN TELEPOSKY, Defendants-Respondents.
Kenneth Marcotte, appellant pro se. Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys for respondent Township of Edison, Township of Edison Police Department (Jennifer Passannante, of counsel and on the brief). Lawrence Y. Bitterman, attorney for respondent Patrolman V. Aravena. Dvorak & Associates, LLC, attorneys for respondents Officer P. Smith, Sergeant Cimmino and Patrolman Teleposky (Lori A. Dvorak, of counsel; Kurt J. Trinter, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7964-11. Kenneth Marcotte, appellant pro se. Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys for respondent Township of Edison, Township of Edison Police Department (Jennifer Passannante, of counsel and on the brief). Lawrence Y. Bitterman, attorney for respondent Patrolman V. Aravena. Dvorak & Associates, LLC, attorneys for respondents Officer P. Smith, Sergeant Cimmino and Patrolman Teleposky (Lori A. Dvorak, of counsel; Kurt J. Trinter, on the brief). PER CURIAM
Plaintiff Kenneth Marcotte appeals the Law Division's entry of a judgment of no cause after a jury trial in his civil suit claiming unlawful arrest and assault. Having reviewed the arguments in light of the record and applicable law, we affirm.
On November 11, 2009, plaintiff called 9-1-1 after his wife struck him with a hand-held massager. Four Edison Township police officers arrived at plaintiff's home: Patrolman Aravena, Officer Smith, Sergeant Cimmino, and Patrolman Teleposky. According to Aravena, when the officers refused to arrest plaintiff's wife, plaintiff became "very, very mad." Aravena instructed plaintiff to "calm down," whereupon plaintiff replied "[d]on't tell me to . . . calm down[,]" and poked Aravena in the chest. In response, the officers handcuffed plaintiff and informed him he was under arrest.
Plaintiff provided a different account at trial. According to plaintiff, he became upset when the officers refused to arrest his wife, and, in the course of directing the officers to leave his property, his outstretched finger made contact with Aravena. Plaintiff contends Aravena then grabbed him by the neck, pulled him to the ground, handcuffed him, and stepped on his testicles.
Pursuant to a negotiated plea agreement, plaintiff pleaded guilty to a municipal ordinance violation. The municipal court imposed $350 in fines and $33 in costs.
On November 14, 2011, plaintiff filed a four-count civil complaint against defendants the Township of Edison Police Department/Township of Edison (Edison), Aravena, Smith, Cimmino, and Teleposky. The complaint alleged, among other things, violations of the New Jersey Constitution, violations of the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2, assault, and unlawful arrest.
Summary judgment was granted in favor of Edison, Smith, Cimmino, and Teleposky on August 23, 2013. On January 21, 2014, trial commenced with Aravena as the sole remaining defendant. Following three days of trial, the jury returned a verdict in favor of defendant Aravena. Consequently, on February 7, 2014, the court entered a judgment of "no cause." This appeal ensued.
In his pro se brief on appeal, plaintiff contends he received ineffective assistance of counsel at trial because his retained counsel called out sick without notice, was unprepared for trial, made questionable choices during jury selection, failed to raise an issue with respect to a possibly biased juror, acted unprofessionally, gave short notice for funding needs, and placed plaintiff's money in a non-interest bearing trust account. He also contends that the court erred in granting summary judgment in favor of defendants Edison, Smith, Cimmino, and Teleposky.
We do not address plaintiff's arguments with respect to the grant of summary judgment because those arguments are not properly before us on appeal. Rule 2:5-1(f)(3)(A) sets forth that the notice of appeal from a civil action "shall designate the judgment, decision, action or rule, or part thereof appealed from[.]" "Although the rule does not expressly so provide, '[i]t is clear that it is only the orders designated in the notice of appeal that are subject to the appeal process and review.'" Petersen v. Meggitt, 407 N.J. Super. 63, 68 (App. Div. 2009) (quoting W.H. Indus. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 458 (App. Div. 2008)).
Plaintiff's notice of appeal only designates the Law Division's February 7, 2014 order of no cause as the order under appeal. Thus, we will not consider plaintiff's arguments with respect to the grant of summary judgment. See, e.g., Belmont Condominium Ass'n, Inc. v. Geibel, 432 N.J. Super. 52, 98 (App. Div.), certif. denied, 216 N.J. 366 (2013); Campagna v. Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div.), certif. denied, 168 N.J. 294 (2001).
Next, we address plaintiff's argument that he is entitled to a new trial because his trial counsel rendered ineffective assistance. In essence, plaintiff is attempting to import a claim of ineffective assistance of counsel from the criminal context into the civil context. However, there is no constitutional right to counsel in ordinary civil cases such as this one, and thus no right to a new trial based upon alleged ineffective assistance of counsel. See, e.g., D.N. v. K.M., 429 N.J. Super. 592, 606 (App. Div. 2013) (concluding that "the protections of due process do not require the appointment of counsel for indigents presenting or defending a private party's civil domestic violence action."), certif. denied, 216 N.J. 587 (2014); Hauck v. Danclar, 262 N.J. Super. 225, 228 (Law Div. 1993).
Plaintiff's remaining arguments "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION