                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-3026-13T4
                                               A-5460-13T4

STATE OF NEW JERSEY,

         Plaintiff,
                                      APPROVED FOR PUBLICATION

    v.                                     June 10, 2015

TALADEEN ROSS, DWAYNE JOHNSON,          APPELLATE DIVISION
KENNETH ROBINSON, PEDRO VICKERS,
PAUL STATEN, CHAD BUTLER, JR.,
JAMIL ANTHONY, JAAMIR HILL,
SIDNEY WILLIAMS, TEREAK BUTLER,
SHARNA ROSS, MAURICE FIELDS,
JASHIRE REID, ZAIRE
FRANKLIN-SHERMAN, NADRELL
MCMILLAN, QUAADIR HAGOOD, JAMAR
HILL, DESIRE ROBINSON, DEVIN
GARDNER, DARNELL RICKETTS, DYLAN
FREER, SHANIQUA DOYLE, APRIL
THOMPSON, DARRELL MORRISON and
TANEJA OLIVER,

         Defendants-Respondents.

_______________________________________________________

         Submitted May 19, 2015 – Decided June 10, 2015

         Before Judges Fisher, Accurso and Manahan.

         On appeal from the Superior Court of New
         Jersey, Law Division, Middlesex County,
         Indictment No. 13-06-870.

         Thomas G. Kelso, Middlesex County Counsel,
         attorney for appellants The Middlesex County
         Adult   Correction  Center   and  County  of
         Middlesex (Benjamin D. Leibowitz, Senior
         Deputy County Counsel, on the briefs).
         Joseph E. Krakora, Public Defender, attorney
         for respondent Public Defender (Stefan Van
         Jura, Assistant Deputy Public Defender, of
         counsel and on the brief).

         Yonta Law, attorneys for respondent Maurice
         Fields; Jack Venturi & Associates, attorneys
         for respondent Taladeen Ross; Abdelhadi &
         Associates, attorneys for respondent Sharna
         Ross; Law Offices of William M. Fetky,
         attorneys for respondent Chad Butler; Anderl
         & Oakley, attorneys for respondent Zaire
         Franklin-Sherman; Kenneth Goodman, attorney
         for respondent Paul Staten; Kelly Anderson
         Smith,   attorney   for   respondent    Quaadir
         Hagood;   Rodger   J.   Wolf,    attorney   for
         respondent Jamar Hill; Michael A. Priarone,
         attorney for respondent Nadrell McMillan;
         David R. Meiswinkle, attorney for respondent
         Jamil   Anthony;   Michael    R.    Napolitano,
         attorney for respondent Jaamir Hill; and
         Raymond P. Morasse, attorney for respondent
         Pedro   Vickers,  join    in   the   brief   of
         respondent Public Defender.

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    During the pretrial stage of this criminal prosecution, the

trial judge entered orders directing the County of Middlesex to

provide the means by which incarcerated defendants could accept,

access and examine electronic discovery.   Although we share the

County's misgivings about the manner in which these orders were

imposed, we also agree with the Public Defender that the issues

have been rendered moot because the County has complied with the

orders in question.




                               2                           A-3026-13T4
      We    briefly         outline         the        case's     procedural            history.

Indictment No. 13-06-870, which was handed up by the grand jury

on June 25, 2013, charged twenty-five defendants in seventy-nine

counts.     At the time the orders in question were entered, many

of the defendants were residing in the Middlesex County Adult

Correction       Center     (MCACC).              A    description       of     the     alleged

offenses is not required.

      On November 13, 2013, the Public Defender filed a motion to

compel     the    MCACC     to    permit     defendants          access       to     voluminous

discovery through electronic means.                           The motion was served on

MCACC's warden, county counsel, an assistant county prosecutor,

and   the        Commissioner          of    the        New     Jersey        Department       of

Corrections.        The motion was later amended to clarify that the

Public Defender also sought an order that would require the

MCACC:     to     permit         the    incarcerated            defendants         to      accept

electronic        discovery        from     their           counsel;     to     provide       the

incarcerated defendants with "individual personal access to a

computer or other electronic device" that would allow access to

electronic discovery "in an appropriate[] confidential setting";

to permit defendants "to view their electronic discovery outside

the presence of defense counsel"; and to bear the expense of

providing electronic equipment and access for viewing discovery.

The   County      opposed    the       motion         and   cross-moved        for    an    order




                                              3                                         A-3026-13T4
directing that the Public Defender pay for and purchase the

necessary hardware, software and related items if the Public

Defender's motion were to be granted.

       The trial judge granted the Public Defender's motion for

reasons set forth in a written opinion.                         In his March 7, 2014

order, the judge compelled the MCACC to permit defendants access

to    electronic    discovery          and    directed      the    MCACC    to     submit    a

proposal for providing access; the order contained no specific

reference    to    the    County's         cross-motion       to    compel    the    Public

Defender     to    bear        the    cost.           On   March     17,     2014,     after

unsuccessfully objecting to the judge's omission of a specific

ruling on the cross-motion, the County filed a notice of appeal.

Out of concern that the March 7 order may not have been a final

order, the County later moved for leave to appeal, which we

granted on May 14, 2014.

       Notwithstanding          the    pending        appeal,      which    divested      the

trial court of jurisdiction to do anything other than enforce

the    order,     see     R.     2:9-1(a),         the     judge    conducted        further

proceedings       regarding          the     Public      Defender's    motion.           And,

despite objecting to the procedures and despite being denied a

stay    in   the     trial       court,        the       County     never     sought      our

intervention;      instead,          the   County      complied     with     the    March    7

order by submitting the required proposal.




                                               4                                    A-3026-13T4
        The judge conducted a case management conference on June 6,

2014,        during    which       arrangements        for     an   evidentiary           hearing

regarding the County's proposal were discussed.                                At that time

the judge entered another order, this time directing the County

to "purchase and deliver to each defendant an electronic device

formatted in accordance with the defendants' needs for viewing

all necessary discovery and the reasonable security concerns of

the     jail,       and     [to]     permit      the     defendants          the     reasonable

opportunity to begin viewing their electronic discovery."                                     The

County moved for leave to appeal the June 6 order; we granted

that motion as well.1

        The     County       urges     a     number      of    procedural          problems    in

challenging the validity of the orders under review.                                 The County

is,     in    fact,       correct    in    a    number    of    respects.           First,    the

proceedings in question, which were instituted by the filing of

a motion in this criminal matter, clearly sought relief of a

civil        nature    against       the   County      and     others   who        were,   quite

obviously, not parties to the criminal proceeding over which the

judge presided.              Although the nature of the criminal action

authorized          the     judge    to    enter      appropriate       discovery          orders

binding        on     the    State        and    on    the     defendants,          the     judge

erroneously           reached       beyond      the    parameters       of    the      case    by

1
    The two appeals were later consolidated.



                                                 5                                     A-3026-13T4
ordering the County – a non-party – to provide equipment by

which discovery could be received and read by defendants.                          The

judge should have dismissed the motion and relegated the Public

Defender    to    filing    a    separate       civil     complaint     naming     the

appropriate entities or individuals as defendants; by choosing

the unfortunate path taken here, the trial court never obtained

in personam jurisdiction over the County or any of the other

parties from whom relief was sought.                     See R. 4:4-4(a).          In

short, the motion filed by the Public Defender in this action

could not (and did not) "summon" the County to appear in the

manner required by Rule 4:4-4 and the constitutional principles

upon which the Rule rests.2

     We    are    also   troubled   by    the    fact     that    the   trial    judge

continued    to    engage   in   proceedings          regarding    this    discovery

issue after the County filed its notice of appeal on March 17,

2014.       At    that   moment,    the       trial     court    was    deprived    of

2
 This is the main fallacy in the proceedings undertaken by the
trial judge, and not the fact – urged by the County – that the
judge was assigned to the criminal part and, therefore, could
not hear what should either have been a civil or chancery
matter.   The Chief Justice's General Assignment Order declares
that all trial judges are "temporarily assigned" to all other
trial divisions.    Accordingly, the fact that this judge was
assigned to the criminal part was no impediment to his hearing a
civil or chancery case; indeed, if the Public Defender had
sought relief by separate suit, the efficient administration of
justice might well have suggested the assignment of that suit to
this criminal judge since he was most familiar with its
substance.



                                          6                                 A-3026-13T4
jurisdiction – with the limited exception of retaining the power

to enforce its orders – absent our leave.              See Manalapan Realty,

L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 376 (1995).                   This

is so even when a notice of appeal is filed precipitously; until

an appeal is dismissed or until this court authorizes a limited

remand    during    the   pendency    of    the   appeal,    the   trial    judge

remains powerless to grant additional relief.                See Shimm v. Toys

from the Attic, Inc., 375 N.J. Super. 300, 304 (App. Div. 2005);

see also Waste Mgmt. of N.J., Inc. v. Morris Cnty. Mun. Utils.

Auth., 433 N.J. Super. 445, 450 (App. Div. 2013).                       In other

words, it is for the appellate court, not the trial court, to

determine whether an appeal has been properly lodged and, until

receiving direction from the appellate court, the trial court

must stay its hand.        It is also clear that the later order was

not entered for the purpose of enforcing the earlier order under

review.    The earlier order compelled the County's production of

a plan; the later order went far afield in granting additional

relief and was, therefore, void upon entry.

    Notwithstanding        our   consternation      about    these     procedural

flaws, we nevertheless find the appeal is moot.                       Rather than

seek a stay from this court, the County chose to comply with the

judge's    orders    by   purchasing        the   electronic    equipment      and

permitting   discovery     to    be   exchanged    through     that    equipment.




                                        7                                A-3026-13T4
There is now no ruling we can make or remedy we can impose that

would    have     any    impact     on     the     trial       court       proceedings.

Greenfield v. N.J. Dep't of Corr., 382 N.J. Super. 254, 257-58

(App. Div. 2006).         The equipment was obtained and provided by

the County and presumably utilized by defendants.                           Whether we

believe that was a correct or incorrect determination will have

no practical bearing on these parties.                     N.J. Div. of Youth &

Family   Servs.    v.    A.P.,    408    N.J.     Super.   252,      261    (App.     Div.

2009).   Accordingly, the consolidated appeals will be dismissed.

      We would add one further comment so there is no confusion

about the future impact of the trial court orders.                         The judge's

decision appears to place, in the first instance, the financial

burden for the necessary equipment on the County, but we discern

from the record that the judge did not necessarily resolve the

dispute between the County and the Public Defender as to the

ultimate burden for these costs.                There is no order that denies

the   County's    cross-motion       for       reimbursement      from      the    Public

Defender; as a result, the issue went undecided for purposes of

appellate review.        See Hughes v. Eisner, 8 N.J. 228, 229 (1951)

(observing that "[a]ppeals are taken from judgments and not from

opinions" and, therefore, a reviewing court will not consider an

appellant's     "dissatisfaction"          with    a   lower    court's      opinion).

Moreover,   even    if    we     viewed    the     decision     as     sufficient        to




                                           8                                      A-3026-13T4
trigger appellate review and even if that decision     could be

interpreted as resolving the question of interest, we agree with

the County that the flawed framework upon which this matter has

proceeded has precluded a full and fair exposition of the issues

and the parties' arguments.   We consequently conclude that the

County's claim for indemnification from the Public Defender may

be pursued in a subsequent civil action unaffected by any issue

or claim preclusion defense the Public Defender or anyone else

may assert.

    The consolidated appeals are dismissed as moot.




                               9                        A-3026-13T4
