                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-2163-18T6

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

K.S.,

     Defendant-Appellant.
______________________________

                    Argued April 2, 2019 – Decided April 23, 2019

                    Before Judges Fisher, Hoffman and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Indictment No. 18-06-1946.

                    Scott Michael Welfel, Assistant Deputy Public
                    Defender, argued the cause for appellant (Joseph E.
                    Krakora, Public Defender, attorney; Caitlin Petruccio,
                    Assistant Deputy Public Defender, of counsel and on
                    the brief).

                    Frank J. Ducoat, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Theodore N. Stephens, II, Acting Essex
                    County Prosecutor, attorney; Frank J. Ducoat, of
                    counsel and on the brief).
            Alexander R. Shalom argued the cause for amicus
            curiae American Civil Liberties Union of New Jersey
            (American Civil Liberties Union of New Jersey
            Foundation, attorneys; Alexander R. Shalom and
            Jeanne M. LoCicero, on the brief).

            Sarah D. Brigham, Deputy Attorney General, argued
            the cause for amicus curiae New Jersey Office of
            Attorney General (Gurbir S. Grewal, Attorney General,
            attorney; Sarah D. Brigham, of counsel and on the
            brief).

PER CURIAM

      This interlocutory appeal – rendered technically moot by the passage of

time and by defendant's untimely passing – poses questions about excludable

time under the Criminal Justice Reform Act (the Act), N.J.S.A. 2A:162-15 to -

26. Because the Act does not enumerate "continuity of government counsel" as

a basis for excludable time, the appeal – if decided on its merits – requires that

we first determine whether, as a matter of law, a prosecuting attorney's

unavailability may represent "good cause," N.J.S.A. 2A:162-22(b)(1)(l); R.

3:25-4(i)(12), to prevent the accused's release through the imposition of

excludable time.1   And, if so, we would then be required to ascertain the


1
   We are mindful that both defense counsel and the ACLU, which has aligned
itself with defendant's position, do not argue the absolutist position that no
excludable time may be permitted for this reason because the Act does not
expressly authorize such a determination. That doesn't mean, however, that we


                                                                          A-2163-18T6
                                        2
circumstances that would justify excludable time when a particular prosecuting

attorney is unavailable and the standard applicable to such a request. Even

though this appeal has been mooted twice over, those mooting circumstances do

not entirely foreclose a disposition on the merits. But, because the record is

barren in many critical respects, we decline the opportunity to decide the

important issues posed in this nearly fact-free environment. We explain.

      On April 7, 2018, a domestic dispute in Irvington led to defendant's arrest

for stabbing her boyfriend.     Three days later, the prosecutor moved for

defendant's pretrial detention pursuant to N.J.S.A. 2A:162-19(a)(1).        That

motion was granted.

      The Act declares that an accused "shall not remain detained in jail for

more than 90 days, not counting excludable time for reasonable delays . . . prior

to the return of an indictment." N.J.S.A. 2A:162-22(a)(1)(a). On June 26, 2018,

before the ninety days elapsed, defendant was indicted and charged with first-

degree attempted murder, N.J.S.A. 2C:11-3(a)(1); N.J.S.A. 2C:5-1(a)(2), and




may not so hold. Their concession does not bind us. But, because we concl ude
that we should not decide these issues in the abstract, we do not reach that
important issue.


                                                                         A-2163-18T6
                                       3
other offenses. 2   The Act also requires that a defendant "shall not remain

detained in jail for more than 180 days" from an indictment's return – not

counting excludable time – "before commencement of the trial."          N.J.S.A.

2A:162-22(a)(2)(a). Defendant was thus entitled, after inclusion of other awards

of excludable time not questioned here, to either be tried or released by January

5, 2019.3 As a result, the trial was scheduled to occur the first week of January

2019.

        On December 18, 2018, as the trial neared, the assigned prosecuting

attorney started another trial.   Recognizing his unavailability by the time

defendant's trial was scheduled to start, the State moved on December 20 for an

order of excludable time. The motion was based on the Act's general "good

cause" catchall provision. See N.J.S.A. 2A:162-22(b)(1)(l) (recognizing the

authority to grant excludable time "for other periods of delay not specifically

enumerated if the court finds good cause for the delay"); R. 3:25-4(i)(12)


2
  Defendant was also charged with: second-degree aggravated assault, N.J.S.A.
2C:12-1(b)(1); third-degree possession of a weapon (a knife) for an unlawful
purpose, N.J.S.A. 2C:39-4(d); fourth-degree possession of a weapon (a knife)
under circumstances not manifestly appropriate for such lawful uses as it may
have, N.J.S.A. 2C:39-5(d); and fourth-degree tampering with physical evidence,
N.J.S.A. 2C:28-6(l).
3
   The record reveals that the trial judge declared a few short periods of
excludable time on earlier occasions that defendant has not challenged.
                                                                         A-2163-18T6
                                       4
(describing the authority to grant excludable time in words identical to N.J.S.A.

2A:162-22(b)(1)(l) except that the rule also declares "that this provision shall be

narrowly construed"). The judge heard argument on January 2 and rendered a

written opinion on January 10 that granted the State's motion by relying only on

the good-cause provision 4; he excluded the twenty-four-day period from January

13 to February 5.5

      Defendant immediately applied to us for expedited handling of a motion

for leave to appeal. We agreed to hear the motion on an expedited basis and, on

January 23, 2019, we granted leave to appeal. We directed expedited briefing

and placed the matter on our April 2, 2019 plenary calendar, but we did not

otherwise intervene, directing instead that the trial court proceedings go forward

"unstayed." We later invited the Attorney General and the American Civil




4
  The State had alternatively moved for an award of excludable time based on
public safety concerns recognized by Rule 3:25-4(c)(2). The judge did not rely
on this ground for the award.
5
   The judge ordered – and defendant does not challenge – excludable time
resulting from defendant's motion to reopen the detention hearing a few days
before the State's motion for excludable time. Defendant claimed that she
should have been released in December, claiming the alleged victim recanted
and no longer wanted to see this prosecution move forward. That motion was
denied but the time of the motion's pendency was found to be excludable.
                                                                           A-2163-18T6
                                        5
Liberties Union to participate; they accepted our invitation and filed briefs on

the merits.

        On March 15, 2019, the prosecutor's office advised that defendant had

died. We inquired about mootness, and the parties and amici separately but

unanimously responded that they thought we should rule on the merits due to

the importance of the issues and notwithstanding defendant's death . We then

requested submissions detailing the procedural history in the trial court since

our grant of leave to appeal as well as further briefing on mootness arising from

defendant's death.     The parties provided their excellent submissions in

commendably rapid fashion.

        The parties' supplemental papers revealed to us what transpired since we

granted leave to appeal. The trial commenced on February 5, 2019. Because

the jury could not reach a verdict, the judge declared a mistrial on March 1,

2019.     The parties then entered into plea negotiations, and, on March 4,

defendant pleaded guilty to third-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(2), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(d), in exchange for the State's recommendation of a non-custodial

probationary term. Defendant was released on March 4, and the judge scheduled

sentencing to occur on April 15, 2019.


                                                                         A-2163-18T6
                                         6
        Defendant died on March 14, 2019.

        In considering whether we should exercise our discretion to consider th e

merits of this appeal, we are presented with two grounds for finding the appeal

technically moot; the appeal is "moot squared."

        Mootness arose first about the time we permitted this interlocutory appeal.

When we granted leave to appeal, but chose not to intervene, the matter turned

moot once the excludable time elapsed. Then, when defendant died before we

could reach the merits, we had yet another reason for finding technical mootness.

        Defendant's intervening death requires consideration of State v. Gartland,

149 N.J. 456, 464 (1997), where the Court recognized in a similar context that

unlike the limitations imposed by the federal constitution, 6 our state

constitution7 "does not confine the exercise of the judicial power to actual cases

and controversies." As an example of our authority to decide appeals rendered

moot by a criminal defendant's death, the Court cited its earlier holding in

Newark v. Pulverman, 12 N.J. 105, 116 (1953), where the defendant's executrix

was ultimately allowed to pursue her late husband's appeal of a municipal

conviction. Similarly, in Gartland, the defendant was convicted and appealed


6
    U.S. Const. art III, § 2, cl. 1.
7
    N.J. Const. art. VI, § 1, ¶ 1.
                                                                           A-2163-18T6
                                         7
but died before the appeal's disposition; the Court acknowledged the power to

decide the appeal notwithstanding the defendant's death. 149 N.J. at 460, 464-

66. To be sure, those cases are distinguishable because those defendants were

convicted and sentenced, and had pending appeals when they died. Here, the

proceedings did not – and never will – result in the entry of a judgment of

conviction.

      Nevertheless, we interpret Gartland as recognizing the discretion of a

court to consider the merits of an appeal even in the present situation. In fact,

even if we view Gartland as reaching only as far as its facts, we are mindful that

the Court has also spoken on this subject through its rule-making power. "[I]n

any criminal action," Rule 2:3-2 permits a defendant or "the defendant's legal

representative" to appeal either a judgment of conviction or an interlocutory

order. So, we do not view defendant's death as terminating any further court

involvement in this matter. We have the discretion to proceed further.

      Reaching the merits of an appeal rendered moot either because of the

inability of the court's decision to have a practical effect on the parties to the

controversy, or because the defendant has died in the interim, warrants a careful

exercise of the court's discretion. That discretion is influenced by concepts of

judicial economy. In re Civil Commitment of C.M., __ N.J. Super. __, __ (App.


                                                                          A-2163-18T6
                                        8
Div. 2019) (slip op. at 8); Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242,

243 (App. Div. 1993); Anderson v. Sills, 143 N.J. Super. 432, 437 (Ch. Div.

1976). That discretion is also properly exercised in favor of a ruling on the

merits only when the technically moot appeal presents issues of "great public

importance," Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303 (1975); see also

Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 484 (2008); De Vesa v.

Dorsey, 134 N.J. 420, 428 (1993) (Pollock, J., concurring), or when the issues

are "capable of repetition," In re Conroy, 98 N.J. 321, 342 (1985), "yet [likely]

evade review," In re J.I.S. Indus. Serv. Co. Landfill, 110 N.J. 101, 104 (1988).

These principles certainly constrain in many instances a disposition on the

merits of a technically moot appeal, but we are also mindful that our Supreme

Court has recently disregarded technical mootness in reaching out to decide

issues arising under the Criminal Justice Reform Act. See State v. Pinkston, 233

N.J. 495, 503 (2018); State v. Mercedes, 233 N.J. 152, 169 (2018). Yet, unlike

those cases, we have a defendant who has died in the interim and we have the

Court's added admonition that the power to review a criminal matter after a

defendant's death should only be "sparingly exercised." Gartland, 149 N.J. at

465.




                                                                         A-2163-18T6
                                       9
        And, not to be lost in all this is the overarching concern about courts

deciding purely academic or hypothetical issues.           In most instances, those

concerns are indistinguishable from the court's inability to practically effect the

parties' interests or, as additionally presented here, that one of the party's interest

in the result has been quelled through death. But there is also a concern –

whether a case is moot or not – when an appellate court is presented with an

inadequate record. Whenever, for whatever reason, an appeal arises from an

order produced without an adequate record, there is always a risk that the court's

disposition will be purely academic and its pronouncement merely a

hypothetical ruling. As expressed by Chief Justice Vanderbilt for our Supreme

Court soon after its creation, courts must not "function[] in the abstract." N.J.

Tpk. Auth. v. Parsons, 3 N.J. 235, 240 (1949). See also Crescent Pk. Tenants

Assoc. v. Realty Eq. Corp. of N.Y., 58 N.J. 98, 107 (1971); Indep. Realty Co. v.

Twp. of No. Bergen, 376 N.J. Super. 295, 301 (App. Div. 2005). It is here that

any willingness we may have had to proceed past the other qualities of mootness

ends.

        The record lacks information from which we might cogently determine

whether the reason or reasons suggested as support for the excludable time order

were in conformity with the Act. The State's motion does little more than allege:


                                                                               A-2163-18T6
                                         10
that an assistant prosecutor was assigned to this matter at its outset; that this

assistant was unavailable to try this case the first week in January 2019 because

he had started another trial; and that the alleged victim's right to consult with

the prosecution could be theoretically hampered by a late change in attorneys.

The general question however – assuming a prosecuting attorney's unavailability

might legally permit a finding of excludable time under any circumstance 8 – is

whether the State took reasonable precautions to avoid finding itself in this

position. And the record is absolutely silent as to what steps the State took in

the run-up to defendant's January trial date.

      Defendant was entitled to a trial within 180 days of her indictment or

release, and the State was aware of this for 180 days. Any crunch caused by

coinciding or overlapping trials in matters assigned to the designated

prosecuting attorney would seem to be inevitable and foreseeable, not sudden



8
   It is interesting that the applicable statute and rule both provide numerous
specific grounds for excludable time but say nothing about the unavailability of
a prosecuting attorney as triggering an award of excludable time. Certainly this
circumstance was foreseeable to the Legislature and the rulemakers, yet they all
failed to express when or under what circumstances excludable time may be
imposed in this or similar instances. It is arguable that this absence means they
intended to exclude as excludable a prosecuting attorney's unavailability. But,
in light of our disposition of this appeal, we need not entertain that question
further.


                                                                         A-2163-18T6
                                       11
and unpredictable. So, when arguing to the trial court that excludable time was

required, the State was obligated to reveal the actions it took to avoid this

foreseeable quandary.

      Surely, the State cannot argue defendant's speedy trial right, or her right

to be released if not tried within 180 days, must take a back seat to the

prosecution's convenience. 9 And, surely, the State cannot dispute that it was

required to take precautions to avoid the circumstances in which it found itself

as the trial date approached. At the bare minimum, in seeking an order of

excludable time, the State should have presented facts to suggest that it had acted

reasonably and engaged in careful, advanced planning and yet – despite such

efforts – still could not avoid this consequence. In the absence of such a

presentation, the court can only guess whether the conflict in trial dates here –




9
   We were told at oral argument that this prosecutor's office consists of about
140 attorneys. It would seem that there was at least one of those many attorneys
who could have prepared to try this case with no great amount of advance notice.
It is hard to imagine that a defendant's rights under the Act carry less weight
than the choice of the prosecutor's office not to have another attorney waiting in
the wings if the assistant assigned to this matter was unable to proceed. But,
again, since none of these facts and circumstances were presented to the trial
court, we decline to rule on this and the other questions posed in the abstract.



                                                                           A-2163-18T6
                                       12
and the attorney's choice of one case over the other 10 – was enough to compel

the imposition of excludable time. Perhaps, in some cases, such a ruling would

be permissible. Again, we do not decide whether the unavailability of the

prosecuting attorney is a ground for excludable time in any circumstances. But

even if unavailability provides a basis for such an order, we have no way of

knowing whether this is an appropriate instance for the exercise of that authority.

      In its arguments to this court, the State seems to recognize the lack of an

adequate factual record but nevertheless argues we should first set down the

grounds rules – that we first delineate those requests that fall within "good

cause" and those that don't – so that the next time this happens the State will

know what presentation it should make in the trial court. We do not view the

court's role in the same way. It was for the State to explain first what it did to

avoid the problem it faced as January 2009 approached, and for the court to then

respond with a determination about the reasonableness of the State's actions, not

the other way around. By failing to present the trial court with an adequate

factual basis for an award of excludable time – assuming such an award could


10
    The record does not even disclose whether the prosecuting attorney's other
trial was on a similar footing. We do not know whether the defendant in that
other case was incarcerated and also nearing a release date, and we have no way
of knowing whether the other case that began instead of this one would have –
if back-burnered – resulted in a similar need for excludable time.
                                                                           A-2163-18T6
                                       13
ever be permitted merely because a prosecuting attorney is unavailable – the

appeal before us truly lurks in the realm of the abstract. Even if we were to

overlook the twin qualities of mootness overshadowing this appeal, we cannot

ignore the fact that the important questions posed about excludable time based

on "continuity of government counsel" grounds were presented on a record that

is, to quote Judge Jayne, "as bald as a cannon ball." Cherr v. Rubenstein, 22

N.J. Super. 212, 216 (App. Div. 1952). That circumstance leads us to conclude,

after much reflection, that we improvidently granted leave to appeal.

      Appeal dismissed.




                                                                        A-2163-18T6
                                      14
