                                NOT FOR PUBLICATION WITHOUT THE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.




                                                                          A-2843-18T4
                                        3
      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.


                                                                         A-2843-18T4
                                       4
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


                                                                A-2843-18T4
                                5
                  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



                                                                          A-2843-18T4
                                        6
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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