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NOT FOR PUBLICATION WITHOUT THE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-0245-14T4
A-4603-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SIDDHARTH GAUR,
Defendant-Appellant.
____________________________
Argued October 19, 2017 – Decided November 6, 2017
Before Judges Simonelli, Haas and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
10-06-0629.
Edward J. Dimon argued the cause for appellant
(Carluccio, Leone, Dimon, Doyle & Sacks, LLC,
attorneys; Mr. Dimon, of counsel; Marguerite
Kneisser, on the briefs).
Tom D. Osadnik, Assistant Prosecutor, argued
the cause for respondent (Camelia M. Valdes,
Passaic County Prosecutor, attorney; Kirah M.
Addes, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
In these consolidated appeals, defendant, Siddarth Gaur,
appeals from his convictions, following a jury trial for attempted
sexual assault and various other charges stemming from his
interactions in a chat room with an undercover detective posing
as a twelve-year-old girl. When he filed his appeal, defendant
included, in his appendix, expert reports that were outside of the
trial record, which he submitted in support of his contention that
the State had altered audiotape recordings of phone conversations
between defendant and a female undercover detective.
We granted the State's motion to strike that information
without prejudice to defendant making a motion in the trial court
for the production of the original recordings. In our order, we
anticipated that any appeal from the outcome of that motion would
be consolidated with defendant's original appeal. We specifically
granted the trial court jurisdiction to decide the motion pending
appeal. Our February 2, 2016 order stated:
We grant the State's motion to strike . . .
the three expert reports appellant procured
after the trial. However, our disposition is
without prejudice to appellant filing a motion
in the trial court to seek relief based upon
those expert reports, including but not
limited to granting appellant's counsel or his
experts access to the original audiotape
recordings in the State's possession. The
trial court shall have jurisdiction to
consider such a motion despite the pendency
of this appeal. Depending on how the trial
court rules on that motion if it is filed,
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either party may seek appellate review of the
court's ruling in a new notice of appeal,
which shall be consolidated with the present
appeal.
[(emphasis added).]
Defendant made the motion and, in support, he filed his
attorney's certification that had attached a copy of our order.
Despite the provisions of our order, after considering the motion
and counsels' oral arguments, the judge concluded that he did not
have jurisdiction to consider the motion. We reverse and remand.
We conclude from our review that the motion judge, who was
not the trial judge, never saw our order. At the outset of oral
argument, the judge stated that he "only . . . had a limited
opportunity to review the submissions," but that based on his
understanding of what was before him, he did not "expect that [he
would] need further review or preparation." He warned counsel
that "there may be issues which you may expect the [c]ourt to know
which I don't as yet."
Notably, neither attorney brought our order to the court's
attention during oral argument. In fact, the prosecutor argued
that defendant's motion was improper and not appropriate for the
motion judge's consideration, never advising the judge that we
already determined that issue in our order.
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The judge concluded that defendant's "arguments [were]
clearly issues to be addressed in the appellate court." He
subsequently entered an order on June 22, 2016, denying defendant's
motion for access to the recordings and, on July 6, 2016, he issued
a memorandum of decision explaining his reasons. In it, the judge
stated that defendant's motion was "beyond the legal competence
of th[e c]ourt to consider [as the] issues [raised are] for the
Appellate Division's consideration on appeal as to the trial
record. There has been no limited remand by the Appellate Division
. . . ." (emphasis added). Obviously, the judge was mistaken.
We are constrained to vacate the judge's order and remand the
matter back to the Law Division for consideration of defendant's
motion in accordance with our original order.
The result here has caused undue delay in our consideration
of defendant's appeal. We caution trial judges to ensure that
they have indeed reviewed all of the submissions and have read and
ensured the accuracy of their decisions before entering orders.
Erroneous orders can cause, as here, a waste of everyone's valuable
time and, more importantly, a delay in justice being done.
The order dated June 22, 2016 is vacated. The matter is
remanded for consideration of defendant's motion within twenty-
one days. We retain jurisdiction, except as originally stated in
our February 2, 2016 order.
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