NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4608-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELLIOTT BATES, d/b/a
E.B. EXCAVATING,
Defendant-Appellant.
___________________________
Submitted May 17, 2017 – Decided July 20, 2017
Before Judges Fuentes and Farrington.
On appeal from the Superior Court of New
Jersey, Law Division, Monmouth County,
Municipal Appeal No. 16-014.
Elliott Bates, appellant pro se.
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Elliot Bates was convicted in the Howell Municipal
Court of operating a commercial vehicle with a gross weight in
excess of the weight limitation permitted by the certificate of
registration for the vehicle, including load or contents. N.J.S.A.
39:3-20e. The municipal court imposed a $106 fine and $33 court
costs. Defendant appealed to the Law Division pursuant to Rule
3:23-2, seeking a de novo review of his municipal court conviction.
The matter came before Superior Court Judge Honora O'Brien
Kilgallen on June 22, 2016. After reviewing de novo the record
developed before the municipal court, Judge O'Brien Kilgallen
found defendant guilty of violating N.J.S.A. 39:3-20e.
With respect to the sentence, Judge O'Brien Kilgallen noted
that the $106 fine imposed by the municipal court was not permitted
under the clear language in N.J.S.A. 39:3-20e, which requires the
imposition of a minimum fine of $500 "plus an amount equal to $100
for each 1,000 pounds or fractional portion of 1,000 pounds of
weight in excess of the weight limitation permitted by the
certificate of registration for that vehicle or combination of
vehicles." Ibid. As a threshold issue, Judge O'Brien Kilgallen
recognized that ordinarily, a defendant "should not, by virtue of
having filed an appeal, be subjected to a greater sentence than
he would have incurred had he not filed an appeal." State v.
Eckert, 410 N.J. Super. 389, 407 (App. Div. 2009) (citing State
v. De Bonis, 58 N.J. 182, 188-89 (1971)). However "where the
sentence imposed in the first instance was illegal, a defendant
2 A-4608-15T1
has no basis to argue that imposition of a harsher sentence on
appeal is prohibited." Ibid.
Applying the method provided in N.J.S.A. 39:3-20e for
calculating the amount of the fine, Judge O'Brien Kilgallen made
the following findings:
The defendant was found to be 900 lbs. in
excess of the weight permitted by the
certificate of registration. This equates to
a fractional charge of $90 on top of the $500
base penalty.
Therefore the defendant is sentenced to pay
$590 for his violation of [N.J.S.A.] 39:3-20e,
and he will also have to pay the originally
imposed court costs of $33.
Defendant now appeals raising the following argument.
CLAIMANTS [SIC] CHARGE FOR AN OVERWEIGHT
VEHICLE AND REGISTRATION BY USE OF TWO
PORTABLE SCALES DESPITE CERTIFIED WEIGHT
TICKET FROM LERTCH'S RECYCLING CENTER ON
BELMAR BLVD. IN WALL TWP NEW JERSEY AND
[N.J.A.C.] 13:47b-1.9 (B) WAS IMPROPER.
We reject this argument and affirm substantially for the
reasons expressed by Judge O'Brien Kilgallen in her oral decision
delivered from the bench on June 22, 2016. We gather the following
facts from the record developed before the municipal court.
At all times relevant to this case Stephen Napoli was a New
Jersey State Trooper and a member of the Commercial Vehicle
Inspection Unit. On November 2, 2015, Napoli was patrolling the
Route 9 area in Howell Township and making random inspections when
3 A-4608-15T1
he first saw defendant's dump truck that was stopped at a traffic
light on Strickland Road. Napoli noticed the truck's lift axle
ascended when it made a left hand turn onto Route 9 South. Napoli
followed the truck for approximately a mile and confirmed that the
truck's left axle remained raised. Based on his training and
experience, Napoli testified that "it could be dangerous" if the
lift axle does descend after a turn and the truck is overburdened.
Napoli directed defendant to pull into a parking lot off of
Route 9 South to conduct a commercial motor vehicle inspection of
the truck. Defendant produced all of the legally required
credentials, including a commercial vehicle registration showing
the dump truck was registered to carry 80,000 pounds. Defendant
also produced a weight bill with a time stamped printout which
reflected the weight of the truck after it was loaded at a quarry.
However, this document did not reflect the weight of the truck
when it left the quarry. Defendant also produced a weight bill
from Lertch Recycling Company, which showed defendant's truck
weighed 79,780 pounds at 9:44 a.m. on November 2, 2015.
As a part of his equipment, Napoli carried four scales which
had been certified by the New Jersey Superintendent of Weights and
Measures. These certifications are maintained by the State Police
at its Princeton Barracks and were admitted into evidence without
4 A-4608-15T1
objection.1 Napoli used these scales to weigh defendant's truck.
He testified that the truck weighed 80,900 pounds at the time,
which was 900 pounds in excess of its authorized maximum weight
capacity. Defendant admitted that Napoli weighed the truck one
hour after the 9:44 a.m. weight bill from Lertch Recycling Company.
Defendant argues here, as he did before the Law Division,
that the State's proof cannot support a finding he violated
N.J.S.A. 39:3-20e because a regulation issued by the
Superintendent of Weights and Measures expressly prohibits the use
of portable self-contained vehicle scales. This regulation
states:
Except as hereinafter provided, the use of a
portable self-contained vehicle scale is
hereby prohibited for determinations of weight
for all commercial purposes.
[N.J.A.C. 13:47B-1.9b]
In response, the State argues defendant misunderstands the
scope of this regulatory prohibition. According to the State, the
regulation does not apply here because the Legislature expressly
authorized the State Police to carry out the type of enforcement
action Trooper Napoli conducted here.
Officers of the Division of State Police shall
have the exclusive authority to conduct random
1
As he did in this appeal, defendant represented himself when the
matter was tried before the municipal court and when the matter
was tried de novo before the Law Division.
5 A-4608-15T1
roadside examinations for the purpose of
determining whether size or weight is in
excess of that permitted in this Title, and
officers of the Division of State Police shall
have the authority, with or without probable
cause to believe that the size or weight is
in excess of that permitted, to require the
driver, operator, owner, lessee or bailee, to
stop, drive or otherwise move to a location
for measurement or weighing and submit the
vehicle or combination of vehicles, including
load or contents, to measurement or
weighing[.]
[N.J.S.A. 39:3-84.3a(2) (emphasis added).]
Judge O'Brien Kilgallen agreed with the State's position. We
do as well. The plain language of the statute authorizes a State
Police Trooper to inspect commercial vehicles on the road to
require these vehicles to "move to a location for measurement or
weighing." Ibid. These random fields inspections permit the
State Police Trooper to determine whether the safety of a
commercial vehicle has been compromised because the vehicle
carries a load that exceeds its registered weight capacity. These
inspections cannot be done without the use of portable scales.
We caution, however, that our holding does not impugn the
validity of N.J.A.C. 13:47B-1.9b. We merely hold that the
prohibition of portable self-contained vehicle scales in N.J.A.C.
13:47B-1.9b does not apply to the State Police in the context of
carrying out the enforcement responsibilities in N.J.S.A. 39:3-
6 A-4608-15T1
84.3a(2). Defendant's remaining arguments lack sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
7 A-4608-15T1
STATE OF NEW JERSEY VS. ELLIOTT BATESÂ (16-014, MONMOUTH COUNTY AND STATEWIDE)
Combined Opinion