STATE OF NEW JERSEY VS. DANIEL ALEXANDER LEVINE (32-2018, MIDDLESEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2843-18T4
STATE OF NEW JERSEY,
Plaintiff,
v.
DANIEL ALEXANDER LEVINE,
Defendant-Respondent.
______________________________
COUNTY OF MIDDLESEX,
Appellant.
______________________________
Submitted May 11, 2020 – Decided May 26, 2020
Before Judges Sabatino and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Municipal Appeal No. 32-
2018.
Thomas F. Kelso, Middlesex County Counsel, attorney
for appellant (Alessandra Baldini, Deputy County
Counsel, on the brief).
Respondent has not filed a brief.
PER CURIAM
The County of Middlesex appeals from a March 5, 2019 Law Division
order denying its motion for reconsideration of an October 9, 2018 order
compelling the County to pay the cost of the transcript of the municipal court
proceeding in which defendant Daniel Alexander Levine was convicted by the
municipal court of an illegal right turn on red, in violation of N.J.S.A. 39:4 -
115(b). Levine ordered to pay a $56 fine and $33 in costs.
Levine appealed the conviction to the Law Division and sought to be
declared indigent so that the transcript of the municipal court proceeding could
be prepared at public expense. He submitted a certification of his financial
condition with attached exhibits that included bank statements, vehicl e lease
agreement, and a California court order.
The Law Division issued an August 3, 2018 order allowing Levine to
proceed as an indigent and waiving filing fees but denying a transcript at public
expense and appointment of counsel. The County was not served with the
motion papers or otherwise given notice of the motion.
The municipal court offered to provide Levine with tape recordings of the
municipal court proceedings and stayed the sentence. Levine declined to accept
the tape recordings in lieu of a transcript.
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Levine then submitted a certification in support of a fee waiver to the Law
Division that contained financial information that materially differed from that
previously submitted. Once again, Levine did not serve the County with the
application. The Law Division issued an October 9, 2018 order compelling the
County to pay the cost of the municipal court transcripts. The record contains
no indication that the August 3, 2018 order was vacated or modified.
On November 27, 2018, the County received an invoice for $435.48 for
the cost of preparing the transcripts of the three municipal court hearings. The
County moved to reconsider the October 9, 2018 order compelling it to pay the
cost of the municipal court transcripts. The Law Division judge denied
reconsideration and reiterated that the County shall pay the cost of the municipal
court transcripts.
In his written statement of reasons, the judge noted that the documents
setting forth Levine's financial information were at times confusing. Levine's
submissions indicated Levine had been declared indigent by a California court,
received Medi-Cal free or low-cost health benefits in California, and had
minimal bank account balances. The California court ordered that transcript
costs would be waived for any appeals filed by Levine.
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The Law Division judge found Levine was self-employed, earning no
more than $500 per month. Yet he owned a home in Colts Neck that he valued
at only $50,000 and stocks and bonds worth between $30,000 and $50,000. The
judge also found Levine has a judgment against him for $44,000, debts totaling
more than $25,000, and owes personal loans of about $10,000. Based on these
circumstances, the judge found Levine indigent.
The Law Division judge rejected the County's argument that transcripts
aa public expense should only be ordered when the defendant is indigent and
faces a consequence of magnitude. The judge distinguished Rule 3:23-8(a)(4),
which provides for assignment of counsel to indigent defendants "if the sentence
imposed constitutes a consequence of magnitude," noting that subsection (3)
omitted the "consequence of magnitude" requirement. He found subsection (3)
afforded "broad discretion to the court to decide whether a defendant is entitled
to a transcript at public expense." The judge acknowledged, however, that
whether the defendant faced a consequence of magnitude "would be a key, if not
controlling factor."
The judge concluded that "it would be unfair to require Levine to pay for
the already-prepared transcript" because he was "teetering on insolvency." This
appeal followed.
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The County raises the following points for our consideration:
I. THE LAW DIVISION'S ORDER CONSTITUTES
AN ABUSE OF POWER BECAUSE IT GRANTED
TRANSCRIPTS AT COUNTY EXPENSE BASED ON
THE REASONING THAT HAVING THE
DEFENDANT PAY FOR THE ALREADY-
PREPARED TRANSCRIPTS WOULD BE UNFAIR
TO THE DEFENDANT.
II. THE LAW DIVISION ERRED IN GRANTING
DEFENDANT'S MOTION FOR FREE TRANCRIPTS
BECAUSE WHILE SOME TRAFFIC OFFENSES
ARE GENERALLY CONSIDERED QUASI-
CRIMINAL ACTIONS, HERE, THE PENALTIES
ASSESSED ARE PURELY MONETARY AND HAVE
NO CRIMINAL IMPLICATIONS, THUS
RENDERING DEFENDANT INELIGIBLE FOR
TRANSCRIPTS AT COUNTY EXPENSE.
A. DEFENDANT HAS NOT SUFFERED A
DEPRIVATION OF A FUNDAMENTAL
HUMAN RIGHT AND THEREFORE
TRANSCRIPTS SHOULD NOT HAVE BEEN
GRANTED AT COUNTY EXPENSE.
B. DEFENDANT IS NOT ENTITLED TO
TRANSCRIPTS PRODUCED AT PUBLIC
EXPENSE PURSUANT TO THE COURT
RULES AND AWARDING SAME AS A
MATTER OF JUDICIAL DISCRETION IS
CONTRARY TO LEGAL AUTHORITY.
C. THE LAW DIVISION ERRED IN FAILING
TO DETERMINE WHETHER THE FULL
TRANSCRIPT OF THE MUNICIPAL
PROCEEDINGS ON THREE DIFFERENT
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DAYS WAS NECESSARY FOR
DEFENDANT'S APPEAL.
III. THE LAW DIVISION ERRED IN
DETERMINING DEFENDANT WAS INDIGENT
AND THEREFORE, ERRED IN GRANTING
DEFENDANT'S MOTION FOR TRANSCRIPTS
PRODUCED AT COUNTY EXPENSE.
We preface our analysis by noting the County was not required to meet
the procedural requirements for motions for reconsideration imposed by Rule
4:49-2 since it had no notice of Levine's indigency application.
Levine was charged with a minor traffic offense. He was sentenced to
fines and costs totaling only $89. He was not sentenced to jail time and his
driving privileges were not suspended. By any measure, his sentence did not
constitute a consequence of magnitude.
We recognize that Rule 2:5-3(d) provides that a court "may" order that
transcripts be provided "at the county's expense" to an indigent defendant "if the
appeal involves prosecution for violation of statute." See also Rule 3:23-8(a)(3).
We review a decision ordering the provision of transcripts at public expense for
abuse of discretion.
An abuse of discretion occurs "when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or rested on an
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impermissible basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467-
68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
The Law Division judge misapplied his discretion by basing his decision,
in part, on Levine's eligibility for Medi-Cal benefits and the California court's
indigency finding, rather than on Levine's current financial status under our
State's indigency standard. The judge failed to apply the definition of indigency
set forth in Administrative Directive No. 3-17, "Fee Waivers Based on
Indigence" (Mar. 23, 2018), which provides that fees may be waived "'by reason
of poverty' for litigants "(a) whose household income does not exceed 150% of
the federal poverty level (with that level based on the number of members of the
individual's household) and (b) who have no more than $2500 in liquid assets,
subject to completion of a uniform fee waiver request form." The requirements
are in the conjunctive; the litigant must meet both prongs of the test to be
declared indigent. Here, Levine reported that he owns stocks and bonds valued
at between $30,000 and $50,000. Levine clearly did not satisfy the second
prong.
We reverse the March 5, 2019 order and remand for entry of a corrective
order holding defendant responsible for the cost of the transcripts.
Reversed and remanded. We do not retain jurisdiction.
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