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State v. Dunn

Decided: May 31, 1957.

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WALTER F. DUNN, DEFENDANT-APPELLANT



Goldmann, Freund and Conford. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

Defendant appeals from the sentence imposed by the County Court after conviction for violation of N.J.S.A. 39:4-98, speeding.

Dunn had been charged in the municipal court with violating the statute in that he operated an automobile at the rate of 50 miles an hour in a 25-mile residential zone in the City of Plainfield. After plea of not guilty and trial, the municipal magistrate found him guilty as charged and imposed a sentence of $30 fine, $5 costs, and revocation of driving privileges for a period of 30 days. Defendant then appealed to the County Court, R.R. 3:10-2, the revocation being stayed by the magistrate pending the outcome.

No stenographic record having been made in the municipal court, the appeal to the County Court operated as an application for a plenary trial de novo without a jury. R.R. 3:10-10(a). After a full hearing the County Court found defendant guilty as charged. Dunn's attorney was then afforded an opportunity to make a statement in mitigation of punishment, R.R. 3:7-10(c), in the course of which he noted that it was the policy of the local magistrate, in the case of violators driving at a speed of 50 miles an hour or over, to impose at least a 30-day revocation of license in addition to a fine. However, he stressed the fact that there was some question as to whether defendant had been travelling at a speed of 49 or 50 miles.

The court, in imposing sentence, stated:

"Magistrate Kiely, in addition to a fine revoked the license of the defendant for thirty (30) days, in accordance with a policy

which he had set as has been revealed now. He is the Magistrate of the Plainfield Municipal Court, and he is in a better position to determine the policy that is best adopted for the safety of the public in Plainfield. Consequently, I find the defendant guilty, as charged, to receive the same sentence imposed; a fine of $30, plus costs, and his license will be revoked for thirty days.

Now, I will hold up the revocation of that license for several days in the event you want to reappear before Magistrate Kiely and argue the question of sentence; if you want to do that and see if he will reconsider that, I will be glad to hold it up."

Defendant does not contend his conviction was improper. He had testified that he was travelling between 35 and 40 miles an hour when apprehended, his estimate being based upon the "feel" of the Cadillac he was driving. The patrolman who made the arrest testified that his electric timing machine showed Dunn was travelling at the rate of 50 miles per hour, cf. State v. Dantonio , 18 N.J. 570, 581 (1955), and that when shown the reading on the timer Dunn said he was "amazed" at his speed. But whether defendant was driving at a rate of 50 miles an hour or somewhat less is inconsequential; the evidence clearly established that he was exceeding the 25-mile speed limit. Defendant's objection goes solely to the sentencing procedure followed by the County Court.

A trial de novo is not limited merely to the taking of testimony, its assessment, and a determination of guilt or innocence, but includes the imposition of a sentence measured by the court's own discretion. On appeal, the County Court on a trial de novo has the power to impose such sentence as is provided by law, R.R. 3:10-10(e); State v. Taylor , 38 N.J. Super. 6, 30 (App. Div. 1955). Subject to statutory limits, the determination of the penalty to be inflicted is a matter resting exclusively in the discretion of the trial court. State v. Terry , 30 N.J. Super. 288, 291 (App. Div. 1954).

A driver convicted of exceeding the speed limits fixed by N.J.S.A. 39:4-98 is subject to a fine of not more than $200, or imprisonment for a period not exceeding ten days, or ...


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