STATE OF NEW JERSEY v. CHRISTOPHER B. FOUNTAIN

NOT FOR PUBLICATION WITHOUT THE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-4321-16T3


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CHRISTOPHER B. FOUNTAIN, a/k/a
BUCK FOUNTAIN, CHRIS FOUNTAIN
and CHARLES M. SPIVEY,

     Defendant-Appellant.
________________________________

              Submitted April 18, 2018 – Decided           May 7, 2018

              Before Judges Koblitz and Suter.

              On appeal from Superior Court of New Jersey,
              Law Division, Atlantic County, Indictment No.
              07-07-1649.

              Christopher Fountain, appellant pro se.

              Damon G. Tyner, Atlantic County Prosecutor,
              attorney for respondent (John J. Santoliquido,
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Christopher B. Fountain appeals from the May 12,

2017 order denying his motion to vacate his convictions and

sentence.        He appeals only on the grounds that the judge who
presided over his trial, a Tax Court Judge temporarily assigned

to the Superior Court, did not have jurisdiction under the New

Jersey Constitution.      Defendant was convicted of second-degree

aggravated assault, 
N.J.S.A. 2C:12-1(b)(1), and related charges,

and sentenced to an extended aggregate term of seventeen years,

subject to the No Early Release Act, 
N.J.S.A. 2C:43-7.2. We reject

his constitutional argument and affirm.

     Defendant has exhausted his direct appeal rights and was

unsuccessful in his first petition for post-conviction relief

(PCR) in the trial court and on appeal.      State v. Fountain, No.

A-1743-08 (App. Div. Apr. 19, 2010) (affirming and remanding for

merger of one count only); State v. Fountain, No. A-5245-12 (App.

Div. Dec. 28, 2015) (affirming the denial of PCR).

     On appeal, defendant argues:

             POINT I: DEFENDANT'S CONVICTION AND SENTENCE
             WAS OBTAINED IN VIOLATION OF THE STATE AND
             FEDERAL CONSTITUTIONS BECAUSE THE TRIAL COURT
             LACKED JURISDICTION TO IMPOSE THE JUDGMENT
             RENDERED UPON DEFENDANT.

     Defendant on this motion for the first time argued that the

Tax Court Judge temporarily assigned by the Chief Justice to the

Superior Court, Criminal Division, lacked jurisdiction to conduct

the trial.    Because a failure of jurisdiction may be raised at any

time, we consider defendant's claim.     R. 3:10-2(e).   In 1993, the

Tax Court Act, 
N.J.S.A. 2B:13-1 to -15, established "a court of


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limited jurisdiction pursuant to Article VI, Section I, paragraph

1 of the New Jersey Constitution."             
N.J.S.A. 2B:13-1(a).         The

jurisdiction of the Tax Court is to "review actions or regulations

with respect to a tax matter . . . ."          
N.J.S.A. 2B:13-2(a).

       Under the Tax Act, "[t]he Chief Justice may assign judges of

the Tax Court to the Superior Court or to any other court as the

need appears, and any judge so assigned shall exercise all of the

powers of a judge of that court."           
N.J.S.A. 2B:13-12.       Pursuant

to the prior Tax Court legislation, 
N.J.S.A. 2A:3A-, our Supreme

Court recognized that power in resolving the issue of presiding

over prerogative writs actions involving tax matters.               Alid, Inc.

v. Town of North Bergen, 
89 N.J. 388, 388-89 (1981).           After citing

to various provisions of the New Jersey Constitution, the Court

determined any such matters would be presided over by a Tax Court

judge temporarily assigned to the Law Division.          Ibid.

       Defendant   argues   that     because   Article   VI,    Section      7,

Paragraph 2 of the State Constitution allows the Chief Justice to

"assign Judges of the Superior Court to the Divisions and Parts

of the Superior Court," without mentioning assigning Tax Court

judges, the Chief Justice may not assign Tax Court judges to the

Superior Court.    Defendant argues the Tax Court Act, which directs

such   temporary   assignment   of    Tax   Court   judges,    is   therefore

unconstitutional.


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     In State v. Buckner, a similar argument was raised regarding

the Recall Statute, 
N.J.S.A. 43:6A-13, which enables the Chief

Justice to call back from retirement judges over the age of

seventy, the constitutionally-compelled age of retirement under

Article VI, Section 6, Paragraph 3.      
223 N.J. 1 (2015).        In

Buckner, our Supreme Court held that the defendant failed to show

beyond a reasonable doubt the Recall Statute was clearly repugnant

to the New Jersey Constitution.   Id. at 14-15, 38-39.    Here also,

defendant has failed to demonstrate by that high burden that the

statute concerning Tax Court judges is unconstitutional.

     The New Jersey Constitution states:    "The Chief Justice of

the Supreme Court shall be the administrative head of all the

courts in the State."    N.J. Const. art. VI, § 7, ¶ 1.   The Chief

Justice thus has the power to temporarily assign Tax Court judges

to the Superior Court.    The judge who presided over defendant's

trial was so assigned.

     Affirmed.




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