STATE OF NEW JERSEY v. ROBERT JAGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5643-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT JAGER,

Defendant-Appellant.

_________________________________________________

March 29, 2012

Submitted November 15, 2011 - Decided

Before Judges Payne and Reisner.

On appeal from Superior Court of New Jersey,

Law Division, Sussex County, Municipal

Appeal No. 17-05-09.

Robert Jager, appellant pro se.

David J. Weaver, Sussex County Prosecutor,

attorney for respondent (Francis A. Koch,

Assistant Prosecutor, of counsel and on

the brief).

PER CURIAM

Defendant, Robert Jager, appeals from his conviction for driving without insurance in violation of N.J.S.A. 39:6B-2 and from his sentence, as a second-time offender, of fines and costs of $1539, two years' loss of license, thirty days of community service, and fourteen days in the Sussex County Jail. In his initial brief in support of his appeal, defendant raises the following issue:

THE COURT NEVER PROVIDED ANY DOCUMENTATION THAT APPELLANT WAS WITHOUT INSURANCE, THEREFORE APPELLANT SHOULD NOT HAVE BEEN CONVICTED OF NOT HAVING INSURANCE. FURTHERMORE, THE INSURANCE POLICY COULD NOT HAVE BEEN CANCELLED BECAUSE THE INSURANCE COMPANY, MISTAKENLY, THROUGH A MIXUP WITH THEIR AGENT, DID NOT HAVE THE CORRECT ADDRESS OF THE APPELLANT.

In his reply brief, defendant contends additionally:

I. The Court erred as there was no documentation that Appellant was without insurance, and he should not have been convicted. The law states that if there is no concrete evidence produced by the insurance company or no evidence of a notice of cancellation was mailed, then it is as if the driver is still insured.

II. Defendant's conviction should not be upheld because he produced evidence of a Fleet policy that was given to him by the insurance company and there was no evidence produced by the Court to the contrary.

III. The Lower Court's finding that the vehicle was without liability insurance was not valid because Appellant was not provided with Discovery stating that he did not have insurance.

We affirm.

The record of trial in the Municipal Court,1 conducted on April 21, 2009, discloses that approximately two years earlier, on June 8, 2007, defendant attended court in Newton, New Jersey on an unrelated civil matter. Upon leaving the court complex, and while driving a red, two-door, 1992 Cadillac from the parking area, defendant was stopped by Sheriff's Officer Warren Slahor, who had been informed that there were outstanding warrants for defendant's arrest. By checking his mobile data terminal, the officer confirmed that the Cadillac was registered to defendant, and determined that defendant's license had been suspended. Evidence produced by the State at trial indicated that an order of suspension had been issued on May 6, 2007, and that it was mailed to defendant on May 11, 2007. Additionally, at the time of the stop, defendant was unable to provide evidence that the Cadillac was insured. Although defendant offered an insurance card, the officer determined that it did not cover the vehicle defendant was driving. Accordingly, Officer Slahor took defendant into custody on the outstanding warrants and issued tickets for driving on a suspended license, N.J.S.A. 39:3-40, failure to provide a valid insurance identification card on request, N.J.S.A. 39:3-29, and driving while uninsured, N.J.S.A. 39:6B-2.

In addition to the foregoing, the State produced evidence, consisting of a certified disposition, demonstrating that defendant had been convicted in the Sparta Municipal Court on April 28, 1975 of driving without liability insurance, and that the conviction had not been appealed.

In testimony at the municipal trial, defendant contested the charge of driving without insurance. In that regard, he produced a page of a declarations sheet for a business auto policy issued by National Continental Insurance Company listing liability and uninsured motorists coverage for seven covered autos. However, defendant did not produce the page that identified the covered vehicles. Additionally, defendant produced a letter allegedly sent by his girlfriend, Margaret Verhagen, dated February 16, 2007, that she had written to National Continental Insurance Company to request transfer of insurance on a "1986 White" to the 1992 Cadillac and also to request that any further correspondence be sent to defendant's residence address in Hicksville, New York.2 Defendant also contended that he had never been notified that his insurance had been cancelled, and that any notice of cancellation had been misdirected to 36 Demarest Road in Sparta, the address listed on the declarations sheet produced by him at trial, whereas defendant's business was located at 36 Demarest Road in Lafayette, and his postal address was a post office box. Defendant claimed that the Sparta address did not exist and, to demonstrate that fact, he produced an envelope that he had sent to the Sparta address that had been returned by the Post Office with the notation "return to sender; not deliverable as addressed; unable to forward." However, despite ample time for investigation, defendant did not produce any evidence, consisting of a complete insurance policy declarations sheet or correspondence from his insurer, indicating that, at any time, it had insured defendant's 1992 Cadillac.

On the basis of this evidence, the municipal judge found defendant guilty of driving without insurance, and he determined that the offense was defendant's second. He did not find him guilty of driving with a suspended license, holding that the State had failed to demonstrate that the suspension commencing in May 2007 was still in effect on the date of defendant's arrest. The municipal judge sentenced defendant, as a second-time offender, to fines and costs of $1539, two years' loss of license, thirty days of community service, and fourteen days in the Sussex County Jail, but permitted the jail term to be served pursuant to the Sheriff's Labor Assistance Program (S.L.A.P.).

Upon appeal to the Superior Court, the matter was considered on the record made in the Municipal Court, and the same findings were made. Defendant was sentenced as in the Municipal Court. However, defendant was not granted a non-custodial alternative to his custodial sentence. Defendant has appealed both his conviction and the requirement that he serve a custodial sentence.

"N.J.S.A. 39:6B-2 is designed to assure the safety of our citizens by making it a motor vehicle offense for driving an uninsured motor vehicle." State v. David, 287 N.J. Super. 434, 440 (App. Div.1996). The statute provides, in relevant part:

Any owner or registrant of a motor vehicle registered or principally garaged in this State who operates or causes to be operated a motor vehicle upon any public road or highway in this State without motor vehicle liability insurance coverage required by this act . . . shall be subject, for the first offense [to enumerated fines community service, and license forfeiture]. Upon subsequent conviction, he shall be subject to a fine of up to $5,000 and shall be subject to imprisonment for a term of 14 days and shall be ordered by the court to perform community service for a period of 30 days, which shall be of such form and on such terms as the court shall deem appropriate under the circumstances, and shall forfeit his right to operate a motor vehicle for a period of two years from the date of his conviction . . . .

The statute distinguishes between owners or registrants of vehicles and operators of vehicles, specifying in the portion of the statute that we have quoted that owners or registrants are strictly liable if they are found to be operating the vehicle without insurance. Knowledge of the lack of insurance is not required. State v. Kopp, 176 N.J. Super. 528, 531 (Law Div. 1980). In contrast, an operator can be held liable only "if he knows or should know from the attendant circumstances that the motor vehicle he is operating is not covered by the required liability insurance policy." State v. Hochman, 188 N.J. Super. 382, 387 (App. Div. 1982). As a registrant, strict liability applies to defendant.

N.J.S.A. 39:2B-2 further provides:

Failure to produce at the time of trial an insurance identification card or an insurance policy which was in force for the time of operation for which the offense is charged creates a rebuttable presumption that the person was uninsured when charged with a violation of the section.

We have held:

An insurance identification card must be possessed by the operator of the motor vehicle while it is being operated. N.J.S.A. 39:3-29. See Gatto v. New Jersey Full Insurance Underwriting Ass'n, 284 N.J. Super. 665, 672 (App. Div. 1995). N.J.S.A. 39:6B-2 permits the operator to defend against the charges by showing that the vehicle was, in fact, insured at the time it was alleged to the contrary. Otherwise, the operator of the motor vehicle, whether or not the owner, is guilty of driving the uninsured motor vehicle. See State v. Hochman, 188 N.J. Super. 382, 387 (App. Div. 1982); State v. Schumm, 146 N.J. Super. 30 (App. Div. 1977), aff'd o.b., 75 N.J. 199 (1978).

[David, supra, 287 N.J. Super. at 439 (footnote omitted).]

Both the Municipal and Superior Court judges found that defendant failed to produce at trial an insurance identification card, an insurance policy or other evidence demonstrating that, at any time, the red Cadillac was an insured vehicle, and that the statutory presumption that defendant was not insured that thus arose had not been rebutted.

We concur with those conclusions. Although defendant presented a copy of a letter that purported to request coverage for the vehicle, he offered no proof that the letter had been sent, that it had been received by the insurer, or that action by the insurer had been taken. Further, defendant argued that any notice of cancellation by the insurer had been misdirected, and as a result, he lacked knowledge of the insurer's action and could not be held liable for a lack of insurance. In this regard, defendant relied on our opinion in Hochman, in which we held that the defendant could not be held liable for violating N.J.S.A. 39:6B-2 when valid notice of cancellation had not been received. Hochman, supra, 188 N.J. Super. at 388-90. However, such a claim could have merit only if evidence existed that insurance was initially in place and that it had been cancelled. Here, neither was demonstrated. Thus, we find that defendant's conviction for failure to maintain liability insurance was proper.

Defendant argues additionally that the Superior Court judge should have permitted him to serve his custodial sentence by participation in the S.L.A.P. program. However, by the use of "shall" to introduce the requirement of fourteen days in jail, N.J.S.A. 39:6B-2 mandates a jail term. Although the requirement of jail pursuant to this particular statute has not been addressed, we have reached the same conclusion that jail is mandated under the equivalent language of N.J.S.A. 39:4-50, governing penalties applicable to third-time offenders found to have been driving while intoxicated. See State v. Kotsev, 396 N.J. Super. 389, 390-92 (App. Div.) (holding jail to be mandatory and S.L.A.P. not to be an option), certif. denied, 193 N.J. 276 (2007); see also State v. Luthe, 383 N.J. Super. 512, 514-15 (App. Div. 2006) (holding that N.J.S.A. 39:4-50(a)(3) does not allow for noncustodial alternatives). Thus, in the present matter, the sentence imposed by the municipal judge failed to conform to the governing statute. Although imposition of a harsher sentence on appeal generally is not permitted, State v. De Bonis, 58 N.J. 182, 188 (1971), defendant has no right to an illegal sentence. State v. McCort, 131 N.J. Super. 283, 288 (App. Div. 1974); see also State v. Eckert, 410 N.J. Super. 389, 407 (App. Div. 2009). As a consequence, we affirm the sentence imposed in the Superior Court.

Defendant's conviction and sentence are affirmed.

1 Defendant was unrepresented at the time of trial. However, the record reflects that he was initially assigned counsel, whom he dismissed, and that he then retained counsel, whom he also dismissed.

2 This letter was not supplied as part of the record on appeal. Instead, defendant has included an affidavit, dated April 8, 2010, in which Verhagen attested to having written the letter and to its contents.