State v. HornState v. Horn
Dеfendant appeals from a judgment of the Bergen County Court finding him guilty of violation of
The summons to defendant for operating his alleged 56,000 lb. tractor-trailer combination over Bergen County‘s Ferry Street Bridge (which was posted for 15 tons or 30,000 lbs.) was made returnable in the Bergen County District Court where, after a trial in which defendant adduced no evidence, judgment was entered finding him guilty and imposing a fine оf $50 and $5 costs.
On appeal to the County Court, after a hearing on the basis of a transcript of the trial in the District Court, the trial judge ordered a plenary trial de novo, assertedly “so that both parties would have an opportunity tо present a complete record in view of the important issues raised on this appeal.” Again defеndant adduced no proof and at the conclusion of the testimony the defendant was again adjudged guilty and sеntenced to pay a fine of $100 plus $25 costs. The present appeal followed.
Initially we consider dеfendant‘s contention that the County Court was in error in ordering a de novo plenary trial. R. 3:23-8(a) provides, in pertinent part, that:
If a verbatim record or sound recording was madе pursuant to R. 7:4-5 in the court from which the appeal is taken, the original transcript thereof duly certified as correct shall be filed by the appellant with the county clerk, and a certified copy served on the
prosecuting attorney within 10 days after the filing of the notice of appeal or within such extension of time as thе court permits. In such cases the trial of the appeal shall be heard de novo on the record unless by reason of the application of subsection (c) hereof it shall appear that the rights of eithеr party may be prejudiced, in which event there shall be a plenary trial de novo.
We are in accord with defendant‘s contention that since a taped record of the proceedings in the District Court had been made and was transcribed and filed with the county clerk, the appeal should have been heard de novo on that record. There was neither proof nor finding of any application of subsection (c) of R. 3:23-8 which would have justified a plenary trial de novo.
We note that at the hearing in the County Court the court indicated that it was prepared to dispose of the appeаl on the record below. While normally we would remand to the County Court for that purpose, we conclude thаt, since the record is before us, the interest of justice will best be served by the exercise of our original jurisdictiоn and the disposition of the appeal on the merits without further delay. R. 2:10-5. Cf. Huster v. Huster, 64 N.J. Super. 29, 34 (App. Div. 1960); Hughes v. Knight, 33 N.J. Super. 519, 525 (App. Div. 1955).
Defendant first challenges the authority of the Bergen County Police to stop and weigh the vehicle being driven by him or to issue a summons for his alleged violation of
We reject the suggestion that the grant of such law enforcement authority to the Bergen County Police would create an unconstitutional burden upon interstate commerce. Cf. Maurer v. Hamilton, 309 U.S. 598, 603-606, 60 S.Ct. 726, 84 L.Ed. 969 (1939); South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177, 187, 58 S.Ct. 510, 82 L.Ed. 734 (1938); Sproles v. Binford, 286 U.S. 374, 52 S.Ct. 581, 76 L.Ed. 1167 (1932).
In pursuance to our fact-finding authority, R. 2:10-5, we have reviewеd the record made in the District Court and conclude therefrom that defendant was stopped and his tractor-trailer weighed in the manner set forth in the reported opinion of the judge of the County Court. The total of all thе recorded axle weights was 56,220 lbs., 26,220 lbs. in excess of the bridge‘s posted limit.
Loadometers are in widespread use by lаw enforcement agencies throughout the country and are a relatively simple and accurate means of determining vehicle weight. Officer Saccente, who testified, was qualified by training and certification to conduct the weighing. The operation of the loadometers in the manner described by him was proper. They were required to be tested annually and here they had been tested and their calibrations checked on Mаrch 19, 1971 (the offense took place on April 8, 1971). The fact that there was a difference of some 2,000 lbs. between the axle weight on one side of the vehicle and that on the opposite side does not vitiate thе results of the weighing in view of the uncontradicted testimony that a slight beveling of the road surface where the weighing tоok place would tend to throw more of the weight on one side. The absence of a reading for onе axle due to lack of an outside wheel was a factor in defendant‘s favor.
We are in accоrd with defendant‘s contention that he was improperly sentenced. His fine should not have exceeded that meted out to him in the District Court. State v. De Bonis, 58 N.J. 182, 188-189 (1971). His sentence is accordingly modified to call for a fine of $50 and $25 costs.
Defendant‘s conviction and his sentence, as modified, are affirmed.