STATE OF NEW JERSEY v. KATHERINE LAI (2011)

On May 24, 2006, a law enforcement officer in Highland Park issued a summons and complaint charging defendant Katherine Lai with criminal mischief, N.J.S.A. 2C:17–3(a)(1) (count one);  disorderly conduct, N.J.S.A. 2C:33–2(a)(2) (count two);  and harassment, N.J.S.A. 2C:33–4(a) (count three).   Following a trial heard in the Superior Court,¹ the court entered an order, on September 11, 2009, finding defendant guilty of criminal mischief.   Upon a motion by the State, a subsequent order was entered on September 30, 2009, dismissing counts two and three of the complaint.   Defendant appealed her conviction, however, for the reasons stated below, we dismiss defendant's appeal as procedurally defective.

The charges arise out of a dispute over furniture between defendant, the owner of a commercial building, and her tenant.   Defendant loaned the furniture to the tenant and the tenant failed to return it.   In response, defendant hired two men to retrieve the furniture from the tenant's business.   When the men attempted to remove the furniture, the tenant protested and threatened to call the police.   Shortly after, defendant personally entered the tenant's business premises and started to remove her furniture.   During the course of this activity, the tenant's facsimile machine was either thrown or knocked to the floor and broken.

Following her trial, on November 13, 2009, defendant filed notice of appeal indicating she was appealing from a September 30, 2009, denial of her motion for reconsideration.²  In a letter from the Appellate Division Clerk's Office to defendant, dated December 18, 2009, the appellate clerk raised concerns regarding, among other things, defendant's failure to provide a complete record on appeal.   That letter stated:

review of your appeal papers discloses that not all necessary transcripts have been ordered․  You are required to order the transcript of the entire proceedings.   R. 2:5–3(b).  If you believe that only a portion of the transcript is required, you may obtain your adversary's consent, in writing, to abbreviate the transcript.   If you are unable to obtain consent, you may file a motion to abbreviate the transcript.   You characterize your appeal as from a motion for reconsideration.   However, the September 30, 2009 order refers to the State's motion.

The transcript ․ issue[ ] must be resolved before the appeal may proceed.   Please take timely action as described in this letter to accomplish this end.

Although defendant moved to file an abbreviated transcript, by order dated February 17, 2010, we denied defendant's motion.   Despite our order, defendant has not submitted a transcript of the entire proceedings.   R. 2:5–3(b).

This insuperable deficiency prevents proper review of defendant's claim and cannot be overlooked.   See e.g. In re Zakhari, 330 N.J.Super. 493, 495 (App.Div.2000);  Cherry Hill Dodge, Inc. v. Chrysler Credit Corp., 194 N.J.Super. 282, 283 (App.Div.1984).   We therefore dismiss the appeal for procedural deficiencies.³  R. 2:8–2.

Accordingly, the appeal is dismissed for lack of prosecution.

FOOTNOTES

FN1. Defendant's disorderly persons offenses were heard in Superior Court rather than Municipal Court because defendant had apparently filed a lawsuit against several of the Highland Park municipal officials.   R. 3:23–2;  R. 7:13–1;  State v. Cerefice, 335 N.J.Super. 374, 381–82 (App.Div.2000)..  FN1. Defendant's disorderly persons offenses were heard in Superior Court rather than Municipal Court because defendant had apparently filed a lawsuit against several of the Highland Park municipal officials.   R. 3:23–2;  R. 7:13–1;  State v. Cerefice, 335 N.J.Super. 374, 381–82 (App.Div.2000).

FN2. The September 30, 2009, order makes no mention of defendant's motion for reconsideration and only memorializes the State's motion to dismiss counts and two and three.   Defendant's referenced motion for reconsideration apparently refers, however, to a letter dated September 22, 2009, included in defendant's appendix.   That letter recounts various lawsuit claims and accusations by defendant against numerous persons and asks for reconsideration of the September 11, 2009 order in S–2006–133.   The record contains no transcript of any hearing or ruling on a motion by defendant and no recital of reasons for any disposition of such motion pursuant to R. 1:7–4..  FN2. The September 30, 2009, order makes no mention of defendant's motion for reconsideration and only memorializes the State's motion to dismiss counts and two and three.   Defendant's referenced motion for reconsideration apparently refers, however, to a letter dated September 22, 2009, included in defendant's appendix.   That letter recounts various lawsuit claims and accusations by defendant against numerous persons and asks for reconsideration of the September 11, 2009 order in S–2006–133.   The record contains no transcript of any hearing or ruling on a motion by defendant and no recital of reasons for any disposition of such motion pursuant to R. 1:7–4.

FN3. We are constrained to add that even if defendant's procedural deficiencies are ignored, the partial record includes sufficient witness testimony and documentary evidence (i.e. contemporaneous photographs taken by the tenant during the incident) to support the court's verdict.   However, without a transcript of the court's findings, we are unable to perform the necessary review of the basis for the verdict..  FN3. We are constrained to add that even if defendant's procedural deficiencies are ignored, the partial record includes sufficient witness testimony and documentary evidence (i.e. contemporaneous photographs taken by the tenant during the incident) to support the court's verdict.   However, without a transcript of the court's findings, we are unable to perform the necessary review of the basis for the verdict.

PER CURIAM