On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket Nos. FO-03-59-04 and FO-03-247-04.
The opinion of the court was delivered by: R. B. Coleman
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and R. B. Coleman.
Defendant, Hashim Shabazz, appeals from an order dated June 15, 2005, that terminated his probation in two underlying matters - FO-03-59-04*fn1 and FO-03-247-04*fn2 - upon completion of a ninety-day custodial sentence in the Burlington County Jail. Defendant's motion for a stay of sentence pending appeal was denied by the trial court and by this court, and defendant has already served the custodial sentence. Nevertheless, the parties agree that defendant's appeal is not moot because of the potentially adverse effect of the order in the event of a future criminal conviction.
Defendant raises essentially three arguments on appeal:
(1) that as to FO-03-59-04, initiation of proceedings for violation of probation (VOP) after the expiration of the one-year probationary period was improper, and the order relating to any violation in that matter should be vacated; (2) that the Chancery Division, Family Part, erred in finding his violation of probation to be "willful"; and (3) that the judge below did not perform the analysis of aggravating and mitigating factors required under N.J.S.A. 2C:44-1, and the sentence imposed was excessive.
Citing State v. DeChristino, 235 N.J. Super. 291, 295 (App. Div. 1989) and State v. Gibson, 156 N.J. Super. 516, 531 (App. Div.), certif. denied, 78 N.J. 411 (1978), the State concedes defendant's first point of argument. In its responding brief, the State admits that "[t]he [c]court had no authority to violate the defendant on FO-03-59-04 because that term of probation had expired [as of January 5, 2005] prior to the filing of the violation on March 4, 2005." The State, therefore, acknowledges that "to the extent that any judgment was entered against defendant for a violation of probation under Docket No. FO-03-59-04, such judgment should be vacated."
Similarly, the State acknowledges that defendant's judgment of conviction in FO-03-247-04 was for defiant trespass, a petty disorderly persons offense.*fn3 Accordingly, and in spite of any confusion that may have emanated from an erroneous reference to contempt in the VOP statement of charges, the State again concedes that under State v. Baylass, 114 N.J. 169, 175 (1989) and N.J.S.A. 2C:43-8, the judge "only had the authority to sentence the defendant to a term not exceeding 30 days." Hence, the State explicitly admits in its responding brief that defendant's judgment of conviction on the VOP should be modified to reflect only a thirty-day term of imprisonment.
Defendant contends, however, that the sentence is illegal and should be vacated in its entirety. We disagree.
Unlike in the case of FO-03-59-04, the VOP summons was timely as to FO-03-247-04, and we are satisfied that the record, supports the finding of a willful violation, especially in light of the court's credibility assessments. After hearing the testimony of defendant's probation officer, Brian Carson, and defendant, the judge found that the probation officer was "entirely credible," while defendant had "zero credibility." The judge found that defendant had willfully violated the terms of his probation by failing to report, failing to pay fines, and failing to take anger management classes. Even if the failure to attend anger management is disregarded - because it was not expressly stated as a condition of probation in FO-03-247-04 - and even if the failure to pay is ignored - on the assumption that defendant lacked the ability to pay - there is still sufficient credible evidence to sustain the finding of a violation.
Defendant nevertheless contends the judge erred in her analysis of the aggravating and mitigating factors. More particularly, he complains that the court found no mitigating factors, and illegally sentenced him to ninety days in the Burlington County Jail. As already noted, the State concedes the sentence for the violation of probation on FO-03-247-04 may not exceed thirty days and that the June 15, 2005 order must be modified. Under ordinary circumstances, we could remand for a hearing in which the sentencing judge could clearly recite the aggravating and mitigating factors that might influence the decision to impose a term of incarceration not in excess of thirty days, however, the sentence has already been served; such a hearing would be hypertechnical and wasteful. See Rule 1:1-2, directing that the rules "shall be construed to secure a just determination, simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay."
Finally, defendant raised two arguments for the first time in his reply brief. He argues that the State may not now seek to amend the "Violation of Probation - Statement of Charges" to delete references to the charge of contempt alleged in FO-03-59-04. He also asserts he received ineffective assistance of counsel. We decline to consider the merits of these newly-raised claims. A.D. v. Morris County Bd. of Social Servs., 353 N.J. Super. 26, 30 (App. Div. 2002). See also Borough of Berlin v. Remington & Vernick Eng'rs, 337 N.J. Super. 590, 596, (App. Div.), certif. denied, 168 N.J. 294 (2001); State v. Smith, 55 N.J. 476, 488, cert. denied, 400 U.S. 949, 91 S.Ct. 232, 27 L.Ed. 2d 256 (1970).
Moreover, we reiterate that while defendant's financial situation may call into question whether or not he willfully failed to pay his fines, there is little question as to his willful failure to inform and meet with his probation officer. In fact, the probation officer testified that defendant waited for the bus outside of the probation office, but typically did not set foot inside. Defendant was required to have scheduled meetings with his probation officer and to inform him of any changes of his employment. However, the court observed defendant believed he was too busy for probation with his work schedule, and that the probation officer should have worked ...