April 14, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ELLIOTT BATES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Municipal Appeal No. 34-2007.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 23, 2009
Before Judges Lisa and Sapp-Peterson.
Defendant, Elliott Bates, appeals from his conviction after a trial de novo in the Law Division, see R. 3:23-8(a), of violating N.J.S.A. 39:5B-32 for having loose decking on a trailer being pulled by his dump truck, for which he was fined $157 and ordered to pay $33 in court costs.*fn1 Defendant argues on appeal that his conviction should be overturned because he was wrongfully precluded from presenting evidence of brain fingerprinting. We reject defendant's argument and affirm.
On May 29, 2007, defendant was driving his vehicle, a tri-axel tandem dump truck, which was pulling a trailer. Defendant came upon a commercial vehicle diesel emissions test site. As required, he pulled into the site and submitted to an inspection of his vehicle. New Jersey State Trooper Terrence Hendricks observed "numerous pieces of trailer decking that were loose, on top of his trailer." These pieces of decking were not secured by bolts or otherwise. "Pieces of it were broken off and just laying on the deck."
On cross-examination, Hendricks acknowledged that he pulled some of the loose boards off of the trailer. He denied, however, that he broke any of the boards off. When asked why he moved the boards, Hendricks said: "Because they appeared loose, Your Honor. There were boards that were on top of the decking itself. There were boards that were in place that were loose that were not attached at any point." Hendricks expressly denied "that some of [the boards] were fixed firmly, and that by [his] jiggling them [he] intentionally loosened them."
In the municipal court trial, defendant proffered evidence of brain fingerprinting. He requested that he and Hendricks be submitted to brain fingerprint testing, which would prove who was telling the truth. The municipal judge rejected the proffer. He found "no basis in law" for the administration of such tests or admissibility of any such test results in evidence. The municipal judge credited Hendricks' testimony and found, "contrary to what the defendant says, that there were boards loose." He thus found him guilty and imposed a $157 fine and $33 in court costs.
N.J.S.A. 39:5B-32 directs the Superintendent of the State Police to adopt, pursuant to the Administrative Procedure Act, rules and regulations concerning the qualifications of interstate motor carrier operators and vehicles, to substantially conform to the requirements established by the federal Surface Transportation Assistance Act of 1982 and applicable federal regulations. The rules have been promulgated at N.J.A.C. 13:60-2.1. Included among the adopted federal regulations is Part 393, Parts and Accessories Necessary for Safe Operation. N.J.A.C. 13:60-2.1(b)4. Pursuant to 40 CFR 393.104, "[v]ehicle structures, floors, walls, decks, tiedown anchor points, headerboards, bulkheads, stakes, posts, and assorted mounting pockets used to contain or secure articles of cargo must be strong enough to meet the performance criteria of § 393.102, with no damaged or weakened components. . . ."
Defendant does not dispute that his vehicle is subject to these regulations. In the Law Division, Judge Ostrer made new and independent findings and rendered a decision de novo, based upon the municipal court record, although giving due, but not controlling, deference to the municipal judge's opportunity to view the witnesses and evaluate their credibility. State v. Locurto, 157 N.J. 463, 472-74 (1999); State v. Johnson, 42 N.J. 146, 157 (1964). Judge Ostrer credited Hendricks' testimony "that he found some boards loose and when he applied some pressure, he was able to lift them out." The judge further found that even if some of the boards "weren't actually bouncing around totally unsecured, they were loose enough to be dislodged," which would constitute a violation of the regulations.
Upon review by this court, we must determine whether the record contains sufficient credible evidence to support the findings made by the Law Division judge. Johnson, supra, 42 N.J. at 162. We have no hesitancy in concluding that the record amply supports Judge Ostrer's factual findings.
Judge Ostrer further found no error by the municipal judge in excluding evidence of brain fingerprinting. He found "no acceptance in the law for such proof, nor did the defendant present cognizable expert opinion before the trial court that such evidence would be admissible."
Brain fingerprinting purports to measure certain patterns of brain activity to determine whether the person recognizes or does not recognize offered information, thus revealing what the person has stored in his or her brain. See Harrington v. State, 659 N.W.2d 509, 516 n.6 (Iowa 2003). We agree with Judge Ostrer that no authority exists in this jurisdiction to establish the reliability of such testing, and the results of any such testing would not be admissible in evidence. And, defendant did not proffer any competent expert opinion to establish the reliability of brain fingerprinting evidence. In any event, Hendricks could not be compelled to submit to any such testing. Defendant's proffer in this regard was properly rejected.