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State v. Horn

Decided: July 20, 1972.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT
v.
JOHN J. HORN, SR., DEFENDANT-APPELLANT



Lewis, Labrecque and Fritz.

Per Curiam

Defendant appeals from a judgment of the Bergen County Court finding him guilty of violation of N.J.S.A. 39:4-75. The background facts are set forth in the opinion of the County Court, 117 N.J. Super. at 74-75, and need not be repeated.

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 of $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 to present a complete record in view of the important issues raised on this appeal." Again defendant adduced no proof and at the conclusion of the testimony the defendant was again adjudged guilty and sentenced to pay a fine of $100 plus $25 costs. The present appeal followed.

Initially we consider defendant'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 made 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 the 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 either 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 appeal on the record below. While normally we would remand to the County Court for that purpose, we conclude that, since the record is before us, the interest of justice will best be served by the exercise of our original jurisdiction 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 N.J.S.A. 39:4-75. We find this contention to be without merit, substantially for the reasons set forth in the opinion of the County Court, 117 N.J. Super. at 76-81. Defendant's argument that no useful purpose would be served by extending enforcement authority to county police officers is belied by the fact, among others, that a county is chargeable under the Bridge Act, N.J.S.A. 27:19-1 et seq. , with the repair and maintenance of many bridges within its borders and that one of the recognized sources of damage to such bridges is the operation of vehicles over them which exceed their posted load limits. In the light of the specific

grant of authority to county police to enforce the provisions of Title 39 found in N.J.S.A. 39:5-1 and N.J.S.A. 40:22-5 (now 40A:14-107), it would be incongruous to hold that county policemen are without power to ...


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