The opinion of the court was delivered by: Conte
This case is before this court on appeal from the Little Falls Municipal Court. The facts of the case are as follows: On August 20, 1994 at approximately 1:28 a.m., Little Falls Police Officer John Kraus responded to McDonald's on Route 46 East in Little Falls in response to a minor accident in the drive-thru lane. Officer Kraus approached a white Honda Prelude and asked the driver for his license, registration and insurance card. It is stipulated that defendant, Michael Rondinone, was the driver of the vehicle. Defendant handed the officer a driver's license in the name of Michael J. Ottomanelli. The registration and insurance card for the white Honda Prelude were in the name of Frances Rondinone, five Quartz Lane, Paterson, N. J. Little Falls Dispatcher Post testified that he ran a Department of Motor Vehicles (DMV) license plate check on the Honda Prelude on August 20, 1994, and it indicated the name and address of Frances Rondinone, five Quartz Lane, Paterson, N.J.
Based on Officer Kraus' observations of defendant and the results of field testing, defendant was transported to headquarters for further testing. At headquarters, Officer Gianduso conducted a breathalyzer test which yielded a .17 blood alcohol content. Defendant was given his Miranda rights. At that time, a summons for Driving While Intoxicated, in violation of N.J.S.A. 39:4-50, was issued to defendant in the name of Michael Ottomanelli. Defendant was released and a taxi transported him from headquarters.
On September 13, 1994, Michael Ottomanelli appeared in Little Falls Municipal Court after receiving a notice in the mail. The municipal Judge dismissed the Driving While Intoxicated summons (Summons 101749) after Officer Kraus indicated that Mr. Ottomanelli was not the man he arrested on August 20, 1994.
Detective Stryker testified that, on October 3, 1995, he and Officer Kraus drove to five Quartz Lane, Paterson to look for the white Honda Prelude. Detective Stryker testified that, on October 4, 1995, he and Officer Kraus went to the apartment located at five Quartz Lane and spoke to Frances Rondinone and determined that Michael Rondinone resided there. With information that they learned from Mrs. Rondinone, the officers contacted the Hoboken Police Department in order to determine the name of the auto body shop which Michael Rondinone owned. Detective Stryker testified that he did a DMV check for Michael Rondinone on October 4, 1994 and found that this name matched the address five Quartz Lane.
On October 5, 1994, Officer Kraus issued Michael Rondinone Summons 102098 for Driving While Intoxicated in violation of N.J.S.A. 39:4-50. In addition, defendant was issued Summons 102092 for Driving While Suspended in violation of N.J.S.A. 39:3-40, Summons 102097 for Exhibiting the Driver License of Another in violation of N.J.S.A. 39:3-39.c., a criminal complaint for uttering a false writing or record in violation of N.J.S.A. 2C:21-4.a. and a criminal complaint for knowingly giving or causing to be given false information to a law enforcement officer with the purpose to implicate another in violation of N.J.S.A. 2C:28-4.a. Defendant was admitted to the Passaic County Pre-Trial Intervention Program (P.T.I.) on November 9, 1994 based on these criminal charges.
On February 28, 1995, Michael Rondinone appeared at the Little Falls Municipal Court. At that time, the municipal Judge denied defendant's application to dismiss the summonses for violation of N.J.S.A. 39:3-39.c. and 39:4-50 based on statute of limitations grounds. The matter was tried in municipal court on March 28, 1995, April 18, 1995, April 25, 1995 and May 3, 1995. On May 3, 1995, the municipal Judge again denied defendant's motion to dismiss the summonses for violation of N.J.S.A. 39:3-39.c. and 39:4-50 based on statute of limitations grounds. In addition, the Judge denied defendant's application that the violation of N.J.S.A. 39:3-39.c. merges with N.J.S.A. 2C:21-4.a. The following sentence was imposed:
Violation of 39:3-40: $500 fine, $30 costs, driver's license suspension for 30 days.
Violation of 39:3-39c: $200 fine, $30 costs, incarceration at Passaic County Jail for a period of 30 days.
Violation of 39:4-50: $1000 fine, $30 costs, $100 DWI, $50 VCCB, $75 Safe Neighborhood Assessment, incarceration at Passaic County Jail for a term of 180 days to be reduced by the performance of community service for a period of 90 days to run consecutively with the 30 day sentence, driver's license forfeiture for a period of 10 years.
The sentence was stayed pending appeal to this court only with respect to the incarceration portion.
Defendant does not appeal his conviction for N.J.S.A. 39:3-40. Defense counsel argues that defendant's convictions for N.J.S.A. 39:3-39.c. and N.J.S.A. 39:4-50 are time-barred pursuant to N.J.S.A. 39:5-3, because the summonses were issued more than thirty days after the date of offense. Defendant bases this argument on State v. Wallace, 201 N.J. Super. 608, 611-612, 493 A.2d 645 (Law Div. 1985). The State argues that Wallace is not binding on this court and, therefore, defendant's reliance on Wallace as a strict rule is inappropriate.
Defense counsel maintains that the dismissal of the original summons issued to Michael Ottomanelli did not enlarge the statute of limitations for the issuance of the new summonses to Michael Rondinone. Defendant adds that the prosecutor should have reserved the right or made a "John Doe" amendment to the initial complaint, especially in light of the fact that the Little Falls Police Department was suspicious of defendant's ...