This court takes the opportunity to amplify its oral decision on this de novo municipal appeal, since it appears that there is no decisional law foursquare to the present factual scenario.
The facts are not in dispute, and were essentially stipulated below. The defendant, Michael V. Parkins, was issued a summons for being an "unlicensed driver" in violation of N.J.S.A. 39:3-10 (hereinafter referred to as "Section 10").
There also is no dispute that the defendant possessed a valid passenger motor vehicle license, and should properly have been charged with a violation of N.J.S.A. 39:3-10.18 (hereinafter referred to as "Section 18"), i.e. the defendant possessed a learners permit for a commercial drivers license, but was unaccompanied by the holder of a commercial drivers license -- a condition of operating with a permit. Over objection of the defense, the court amended the summons to Section 18, entered a finding of guilty, imposed a fine of $200.00, costs of $25.00, a
$1.00 ATS fee, and a one hundred and eighty day ineligibility period to obtain a commercial drivers license.*fn1
As an aside, even if the amendment were proper, the State concedes that the sentence was illegal. N.J.S.A. 39:3-10.18a(3) provides that a person violating that subsection "shall be fined not less than $250.00 or more than $500.00, or imprisoned for not more than sixty days, or both". Clearly, the fine was illegal (the assessment being below the statutory minimum); but more significantly, the court below had no authority to disqualify the defendant from obtaining a commercial drivers license.
The State, however, does contend that the trial court did properly exercise its discretion by amending the summons. This court disagrees for the reasons set forth hereinbelow.
Firstly, there is no question that Rule 7:10-2 permits the amendment of a summons as long as the amendment does not charge "a different substantive offense (other than a lesser included offense)".
The elements for a violation of Section 18 are not lesser, but different than the elements required for a violation of Section 10. A violation of Section 10 occurs when a person operates a motor vehicle without having been licensed. Defendant herein had a motor vehicle license, and also had a permit for a commercial drivers license. What he did not have was the holder of a commercial drivers license in his presence while operating.
Secondly, a violation of Section 18 cannot definitionally be considered a "lesser included offense" of Section 10. By way of illustration, N.J.S.A. 2C:1-8d(1), (2), and (3) delineate "lesser included offenses" at the indictable level. It defines a lesser included offense as one which "is established by proof of the
same or less than all the factors required to establish the commission of the offense charged . . ." (emphasis supplied). A violation of Section 18 requires presentation of different facts, ...