Opinion
DOCKET NO. A-1444-12T2
07-29-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FRED S. LEHMANN, Defendant-Appellant.
Sherman, Silverstein, Kohl, Rose & Podolsky, P.A., attorneys for appellant (David C. Silverman and Kristofer B. Chiesa, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Maven. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Municipal Appeal No. 31-12. Sherman, Silverstein, Kohl, Rose & Podolsky, P.A., attorneys for appellant (David C. Silverman and Kristofer B. Chiesa, on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer B. Paszkiewicz, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Fred S. Lehmann appeals from an order entered by the Law Division on October 18, 2012, denying his motion to convert fines imposed by the municipal court to jail time. We affirm.
This appeal arises from the following facts. On October 24, 2005, defendant was convicted in the municipal court for the Borough of Riverton of driving while intoxicated (DWI), in violation of N.J.S.A. 39:4-50, and operating a motor vehicle while in possession of a controlled dangerous substance (CDS), in violation of N.J.S.A. 39:4-49.1. The municipal court imposed monetary penalties totaling $853. Defendant was thereafter convicted of possession of CDS on multiple occasions, in violation of N.J.S.A. 2C:35-10(a), and sentenced to a term of incarceration in a State prison.
In November 2011, defendant filed a motion in the municipal court seeking to convert the fines imposed for the DWI to jail time, and to run the sentence concurrent to the time served on the subsequent CDS convictions. The court staff informed defendant that it would amend the payment order to allow defendant to begin paying the fines after his release from jail.
Defendant asked that his application be presented to the court. The court denied the motion for reasons stated on the record on May 7, 2012. The court noted that defendant had "never paid a nickel" of the DWI penalties. The court said it would be inappropriate to convert the penalties to a concurrent jail sentence because, if such relief were granted, defendant "would never be serving any penalty" for the DWI offense. The court entered an order denying the motion but directed that defendant pay $100 per month beginning on July 15, 2012, which was one month after defendant expected to be paroled.
Defendant then sought de novo review of his motion by the Law Division. The judge considered the motion on October 18, 2012, and placed his decision on the record. The judge stated that he agreed with the municipal court's determination, noting that the DWI was a serious motor vehicle offense. The judge pointed out that if defendant's penalties were converted to a concurrent jail sentence, in effect, the DWI offense would get "washed."
The judge stated that defendant should be required to "pay his fines." He noted that defendant had not been released from prison, as anticipated. The judge said defendant could begin to pay his penalties in $100 per month installments after he is released from prison. The judge memorialized his decision in an order dated October 18, 2012. This appeal followed.
Defendant argues that the Law Division erred by failing to substitute incarceration for payment of the DWI monetary penalties pursuant to N.J.S.A. 39:5-36. When defendant made his application and the courts made their decisions, N.J.S.A. 39:5- 36 provided in pertinent part that except "as otherwise expressly provided in this subtitle, any person who shall be convicted of a violation of any of the provisions of this subtitle, and upon whom a fine shall be imposed shall, in default of payment thereof, be imprisoned in the county jail . . . where the offense was committed[.]" We note that while this appeal was pending, N.J.S.A. 39:5-36 was amended, effective January 13, 2014. L. 2013, c. 180, § 2. However, the relevant provisions of the statute are substantially the same.
In State v. De Bonis, 58 N.J. 182 (1971), the defendant had been convicted of certain motor vehicle offenses, for which fines and costs were imposed. Id. at 185. The trial court refused to permit the defendant to pay the fines in installments and ordered him committed until payment was made. Ibid. The Supreme Court reversed. Id. at 201.
The Court stated that if a defendant shows that he is not able to pay the fine "at once," he should be afforded an opportunity to pay the fine in reasonable installments, "consistent with the objective of achieving the punishment the fine is intended to inflict." Id. at 199. The Court added that if the defendant fails to make the installment payments, the court "may reduce the fine, or suspend it, or modify the installment plan, or, if none of those alternatives is warranted, the court may impose a jail term to achieve the needed penological objective." Id. at 200.
Here, the trial court did not abuse its discretion by refusing to convert the penalties to a concurrent jail sentence, as doing so would not have achieved any penological objective. The Law Division judge correctly noted that, if a jail sentence was imposed in lieu of the monetary penalties, and run concurrent with the sentence defendant was then serving, defendant would suffer no adverse consequences as a result of the wholly distinct DWI conviction. Further, the judge correctly determined that defendant should pay the monetary penalties imposed and could do so with installment payments commencing upon his release from jail.
Defendant also argues for the first time on appeal that his fines should be revoked pursuant to N.J.S.A. 2C:46-3 based on his alleged inability to pay. We will not consider an issue that was not raised in the trial court unless it relates to the court's jurisdiction or substantially implicates the public interest. State v. Harris, 209 N.J. 431, 445 (2012); Pressler and Verniero, Current N.J. Court Rules, comment 2 to R. 2:6-2 (2014). Defendant's argument does not relate to jurisdiction or concern a matter of public interest. If defendant wishes to do so, he may apply to the municipal court for relief from the monetary penalties imposed, based on the alleged inability to pay.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION