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.

NOT FOR PUBLICATION WITHOUT THE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.
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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, vehicle 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 ALREADYPREPARED 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 QUASICRIMINAL 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.