New NJ Statutes , Recent cases and Court Rules: March 2013

January 31, 2013

REPORT OF THE

SUPREME COURT COMMITTEE

CRIMINAL PRACTICE

2011 – 2013 TERM

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TABLE OF CONTENTS

CONTENTS

PAGE

Rule Amendments Recommended for Adoption ................................................... 1

Proposed Amendments to R. 3:14-1 – Updates to the Venue Rule ................ 1

Proposed Amendments to R. 3:26-2(d) – Bail Reduction Motions ................ 10

C. Proposed Amendments to R. 3:26-4(g) – Bail Restrictions

for Certain Domestic Violence Crimes and Offenses ..................................... 12

II.

Non – Rule Recommendations ................................................................................ 15

A. Proposed Amendments to the Notice of Appeal Rights and Time

to File a Petition for Post-Conviction Relief Form ......................................... 15

Proposed Amendment to the Grave’s Act Plea Form ..................................... 21

C. Proposed Amendments to the Supplemental Plea Form for Theft

of a Motor Vehicle or Unlawful Taking of a Motor Vehicle and

a New Form – Notice to Defendants Convicted of Eluding ........................... 23

III. Matters Previously Sent to The Supreme Court ................................................... 27

State v. Henderson and State v. Delgado - Recording Requirements For

Out-Of-Court Identification Procedures .......................................................... 27

State v. O’Brien – Distribution of Written Jury Instructions .......................... 29

IV. Rule Amendments and Other Issues Considered and Rejected .......................... 31

R. 3:13-3 - State v. W.B. – Discovery of Law Enforcement Notes ................ 31

State v. Morgan - Ex Parte Communications Between the Judge

and Jury During Deliberations ........................................................................ 35

C. R. 3:9-3 - State v. Hand - Joinder of Municipal and Criminal Cases

Double Jeopardy and Guilty Pleas .................................................................. 37

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CONTENTS

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D. State v. Moran – Standards to Impose a License Suspension Pursuant

to N.J.S.A. 39:5-31 .......................................................................................... 39

Revisions to the Statutes Governing Expungements ...................................... 40

Guilty Plea Cases – Missouri v. Frye and Lafler v. Cooper ........................... 41

Preservation of Evidence ................................................................................. 43

R. 3:9-3(d) – Time Limits for the State to Move to Annul Plea

Agreements ...................................................................................................... 44

R. 3:15-3 – Joinder of Indictable and Non-Indictable Complaints ................. 45

Scheduling Conflicts For Municipal Court and Superior Court Matters ........ 47

State v. Parker, 212 N.J. 269 (2012) – Oral Argument in Petitions

for Post-Conviction Relief .............................................................................. 49

V. Other Business .......................................................................................................... 52

A. Request for Comment on Confidentiality of Addresses in Citizen

Complaints and Criminal Complaints of Domestic Violence Victims ........... 52

B. Electronic Signature of a Judge on the Judgment of Conviction .................... 54

VI.

Matters Held for Future Consideration ................................................................. 55

State v. Handy ................................................................................................. 55

Pretrial Intervention Guidelines ...................................................................... 56

Presentence Investigation Reports .................................................................. 58

D. Trial De Novo Standard of Review – Municipal Appeals .............................. 59

Telephonic Issuance of Drug Offender Restraining Orders and

Nicole’s Law Restraining Orders .................................................................... 61

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Rule Amendments Recommended for Adoption

A. Proposed Amendments to R. 3:14-1 – Updates to the Venue Rule

During the 2009 - 2011 term, the Committee considered a technical amendment to

R. 3:14-1(j) in recognition of the rights of civil partners, as recommendations were being

proposed to make similar amendments to Part I and Part IV of the court rules. The

Committee recognized that, since its inception R. 3:14-1 has only been amended twice.

In 1975, prior to the enactment of the Title 2C Criminal Code (L. 1978, c. 95), the rule

was amended to add paragraph (k) to address venue for indictments returned by the State

Grand Jury. Thereafter, R. 3:14-1 was amended in 1994 in conformance with the

Supreme Court’s policy on gender-neutrality. Upon reviewing the language of the rule in

its entirety, the Committee agreed that the substance of the entire language of R. 3:14-1

governing venue should be updated. The Committee’s review was guided by language in

the “Territorial Applicability” statute, N.J.S.A. 2C:1-3, which governs jurisdiction for a

person to be convicted of an offense under the laws of the State of New Jersey. The

Committee is recommending several revisions to R. 3:14-1, which are set forth below.

Proposed Revisions to Paragraph (a): As currently written, the rule

provides: “[a]n offense shall be prosecuted in the county in which it was committed” and

it continues to list several exceptions to the rule that are listed in paragraphs (a) through

(k). The Committee is recommending that paragraph (a) be revised to list six general

categories for venue, which are similar to the language in N.J.S.A. 2C:1-3(a) to determine

jurisdiction for a person to be convicted of an offense in New Jersey. As amended, the

proposed language R. 3:14-1(a) would provide that an offense shall be prosecuted in the

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county where: (1) conduct which is an element of the offense occurred; (2) the result

which is an element of the offense occurred; (3) if harm to a victim or depriving a victim

of a benefit is an element of the offense, where the victim resides; (4) conduct sufficient

to constitute an attempt occurred; (5) conduct sufficient to constitute a conspiracy to

commit an offense occurred; or (6) conduct establishing complicity in the commission of,

or an attempt, or conspiracy to commit, an offense occurred. In recommending the

revisions to paragraph (a), the Committee is also recommending that the current language

in paragraph (a), which addresses situations where the offense occurred in more than one

county, be moved to new paragraph (f), which is discussed below.

Proposed Revisions to Paragraph (b): Currently, paragraphs (b), (c) and (d)

of the rule discuss venue for homicides. Paragraphs (b) – (d) of R. 3:14-1 currently state:

(b) If a person dies in one county as a result of an

offense committed in any other county or counties, the

prosecution may be had in any of such counties.

result of an offense is found in any county, prosecution

may be had in such county, regardless of where the

offense was committed.

(d) Whenever a person dies within the jurisdiction of

this State as a result of an offense committed outside

the jurisdiction of this State, or dies outside the

jurisdiction of this State as a result of an offense

committed within the jurisdiction of this State, the

prosecution shall be had in the county in which the

death occurred or the offense was committed.

N.J.S.A. 2C:1-3(d) provides:

d. When the offense is homicide, either the death of

the victim or the bodily impact causing death

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constitutes a "result," within the meaning of subsection

a.(1) and if the body of a homicide victim is found

within the State, it may be inferred that such result

occurred within the State.

The Committee is recommending revisions to paragraph (b) of R. 3:14-1 that

would consolidate current paragraphs (b), (c), and (d) that govern venue for homicide

offenses into one subsection. These revisions are similar to the language in N.J.S.A.

2C:1-3(d), which governs when a person can be convicted of a homicide under the laws

of this state. As revised, the new language in paragraph (b) of the rule would provide as

follows:

(b) A homicide may be prosecuted in a county in

which either the death of the victim or the bodily

impact causing death occurred; if the body of a

homicide victim is found within a county, it may be

inferred that the death of the victim or the bodily

impact causing death occurred within the county.

New Language for Paragraph (c): The Committee is recommending that

paragraphs (h) and (i) be redesignated and incorporated into new paragraph (c) to

consolidate venue for acts of forgery, fraud, theft by deception or unlawful disposition,

and receiving stolen property. Currently, paragraphs (h) and (i) of R. 3:14-1 provide that

(h) Any person who steals the property of another,

outside this State, or receives such property knowing it

to have been stolen, and brings it into this State, may

be prosecuted in any county into or through which the

stolen property is brought.

(i) Prosecutions for acts of forgery, embezzlement,

conversion or misappropriation may be had either in

the county in which such offense was committed or in

the county in which the offender last resided.

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First, paragraph (c) is being revised to update and incorporate the crimes of fraud,

theft by deception or unlawful disposition, or receiving stolen property, some of which

are currently referenced in paragraph (h) and (i) of the rule. The proposed revisions to

paragraph (c) also delete references to embezzlement, conversion and misappropriation,

formerly governed by the Title 2A statutes, which now fall within the categories of theft

offenses in Title 2C of the Criminal Code. The proposed revisions to paragraph (c) (with

the additions underlined and the deletions in brackets) are as follows:

misappropriation] fraud, theft by deception or unlawful

disposition, or receiving stolen property may be

prosecuted [had] either in the county in which [such]

the offense was committed or in the county in which

the offender last resided.

New Language for Paragraph (d)

The Committee is recommending that new language for paragraph (d) be added to

the rule to address venue for nonsupport, N.J.S.A. 2C:24-5. The proposed language for

new paragraph (d) provides:

(d) Nonsupport may be prosecuted in any county in

which the victim resided at the time of the nonsupport

or in the county in which the victim resides when the

prosecution is begun.

New Language for Paragraph (e)

The Committee is recommending that the current language in paragraph (k) of the

rule, which governs the county of venue for trials for indictments returned by a State

Grand Jury be redesignated as new paragraph (e). The Committee is not recommending

any substantive changes to the current language of the rule.

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New Language for Paragraph (f)

The Committee is recommending that the current language in paragraph (a) of the

rule, which governs situations where venue may be had in multiple counties be

redesignated as new paragraph (f). The Committee is not recommending any substantive

changes to the current language of the rule.

Deleted Paragraphs: In light of the revised paragraph designations above,

the Committee is recommending that current paragraphs (c), (d), (e), (f), (g), (h), (i), and

(j) of the current rule be deleted. Paragraphs (c) and (d) address venue for homicide

offenses and, as discussed above, that language has been revised and incorporated into

new paragraph (b) of the rule. Paragraph (e) addresses venue for treason. The treason

statute, N.J.S.A. 2A:148-1 to -148-22.1 was repealed by L. 1978, c. 95 (eff. Sept 1,

1979). Paragraph (f) addresses venue for libel. The libel statute, N.J.S.A. 2A:120-1 was

repealed by L. 1978, c. 95 (eff. Sept 1, 1979). Paragraph (j) addresses venue for

desertion. The desertion statute, N.J.S.A. 2A:100-1 to -8 was repealed by L. 1978, c. 95

(effective Sept. 1. 1979). The Committee is therefore recommending that current

paragraphs (e), (f), and (j) of the rule, which address treason, libel and desertion,

respectively, should be deleted because those statutes were repealed effective September

1, 1979. Paragraph (g) of the rule addresses venue for an accessory to a crime. The

Committee is recommending that current paragraph (g) of the rule should be deleted and

that a corresponding amendment to subsection (a)(6), as set forth above, be made to

incorporate venue for complicity. Furthermore, as current paragraphs (h) and (i) of the

rule address crimes which are now codified as theft offenses and crimes involving

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receiving stolen property, the Committee recommends deleting paragraphs (h) and (i) and

moving the appropriate language to revised paragraph (c), as set forth above.

The proposed amendments to R. 3:14-1 follow.

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3:14-1.

Venue

(a) An offense shall be prosecuted in [the] a county where [in which it was

committed, except that]

[(a) If it is uncertain in which one of 2 or more counties the offense has been

committed or if an offense is committed in several counties prosecution may be had in

any of such counties.]

(1) conduct which is an element of the offense occurred;

(2) the result which is an element of the offense occurred;

(3) if harm to a victim or depriving a victim of a benefit is an element of the

offense, where the victim resides;

(4) conduct sufficient to constitute an attempt occurred;

(5) conduct sufficient to constitute a conspiracy to commit an offense occurred; or

(6) conduct establishing complicity in the commission of, or an attempt, or

conspiracy to commit, an offense occurred.

(b) A homicide may be prosecuted in a county in which either the death of the victim

or the criminal act or conduct resulting in death occurred, or in a county in which the

body of a homicide victim is found, regardless of where the offense was committed. [If a

person dies in one county as a result of an offense committed in any other county or

counties, the prosecution may be had in any of such counties.

any county, prosecution may be had in such county, regardless of where the offense was

committed.

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(d) Whenever a person dies within the jurisdiction of this State as a result of an

offense committed outside the jurisdiction of this State, or dies outside the jurisdiction of

this State as a result of an offense committed within the jurisdiction of this State, the

prosecution shall be had in the county in which the death occurred or the offense was

committed.

(e) Prosecution for acts of treason against this State which were committed outside

the jurisdiction of this State shall be had in any county designated by the Chief Justice.

(f) Prosecutions for libel shall be had either in the county in which the publication

was made or the county in which the libeled person resided at the time of the publication.

(g) An accessory may be prosecuted as such either in the county in which the offense

to which he or she is an accessory is triable or the county in which he or she became such

accessory.

(h) Any person who steals the property of another, outside this State, or receives such

property knowing it to have been stolen, and brings it into this State, may be prosecuted

in any county into or through which the stolen property is brought.

(i) Prosecutions for a]

deception or unlawful disposition, or receiving stolen property may be prosecuted [had]

either in the county in which [such] the offense was committed or in the county in which

the offender last resided.

[(j) Prosecutions for desertion may be had either in the county in which the wife or

any child resided at the time of the desertion or in the county in which the wife resides

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when the prosecution is begun.]

(d) Nonsupport may be prosecuted in any county in which the victim resided at the

time of the nonsupport or in the county in which the victim resides when the prosecution

is begun.

[k] (e) The county of venue for purposes of trial of indictments returned by a State Grand

Jury shall be designated by the Assignment Judge appointed to impanel and supervise the

State Grand Jury or Grand Juries pursuant to R. 3:6-11(b).

(f) If it is uncertain in which one of 2 or more counties the offense has been committed or

if an offense is committed in several counties prosecution may be had in any of such

counties.

Source-R.R. 3:6-1; paragraph (k) adopted July 17, 1975 to be effective September 8,

1975; paragraph (g) amended July 13, 1994 to be effective September 1,

1994[.];paragraphs (a) and (b) amended, paragraphs (c), (d), (e), (f), (g), (h) and (j)

deleted, paragraph (i) redesignated as amended paragraph (c), text of paragraph (a)

redesignated as new paragraph (f), text of paragraph (k) redesignated as new paragraph

(e) and new paragraph (d) adopted

to be effective

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B. Proposed Amendments to R. 3:26-2(d) – Bail Reduction Motions

The Committee is recommending an amendment to R. 3:26-2 to address a possible

conflict between R. 3:26-2(d), which governs bail reduction motions and R. 1:6-2(a),

which governs the form of motions. R. 1:6-2(a) provides that, in general, motions “shall

be by notice of motion in writing unless the court permits it to be made orally.” The rule

provides an exception from the writing requirement for bail motions made pursuant to R.

3:26-2(d). R. 3:26-2(d) specifically governs bail reduction motions and provides that the

first motion for a bail reduction shall be heard no later than seven days after it is filed.

The Committee recognized that oral motions, such as those made in bail reduction

matters, are not “filed.”

The Committee discussed the various practices for filing bail reduction motions

across the state, ranging from: a notice of motion filed in writing; a form completed for

the court to consider whether bail is excessive; and informal oral motions. The

Committee considered whether there should be a requirement to file written motions for

bail reductions. However, it recognized that most counties have an informal procedure to

request a reduction in the bail amount, and that it would be too time-consuming for the

parties to file briefs for these types of matters. The Committee agreed that the court rules

should continue to reflect that bail reduction motions can be filed orally. For purposes of

clarity, it is recommending revisions to R. 3:26-2(d) to provide that a first application for

a bail reduction shall be heard by the court no later than seven days after it is made.

The proposed amendments to R. 3:26-2(d) follow.

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3:26-2. Authority to set bail

(a) . . . no change.

(b) . . . no change.

(d) Bail Reductions. A first [motion] application for bail reduction shall be heard by the

court no later than seven days after it is [filed] made.

Source-R.R. 3:9-3(a) (b) (c); amended July 24, 1978 to be effective September 11, 1978;

amended May 21, 1979 to be effective June 1, 1979; amended August 28, 1979 to be

effective September 1, 1979; amended July 26, 1984 to be effective September 10, 1984;

caption amended, former text amended and redesignated paragraph (a) and new

paragraphs (b), (c) and (d) adopted July 13, 1994 to be effective January 1, 1995;

paragraph (b) amended January 5, 1998 to be effective February 1, 1998[.]; paragraph (d)

amended

to be effective

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C. Proposed Amendments to R. 3:26-4(g) – Bail Restrictions for Certain

Domestic Violence Crimes and Offenses

P.L. 2011, c. 138 amended N.J.S.A. 2A:162-12 to provide that crimes with bail

restrictions include certain crimes or offenses involving domestic violence, as set forth in

the statute. The Committee is recommending an amendment to R. 3:26-4(g) to include a

reference to certain domestic violence crimes or offenses that are ineligible for posting of

10% bail.

The proposed amendments to R. 3:26-4(g) follow.

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3:26-4.

Form and Place of Deposit; Location of Real Estate; Record of Recognizances,

Discharge and Forfeiture Thereof

(a) . . . No change.

(b) . . . No change.

(d) . . . No change.

(e) . . . No change.

(f) . . . No change.

(g) Ten Percent Cash Bail. Except in first or second degree cases and certain crimes or

offenses involving domestic violence as set forth in N.J.S.A. 2A:162-12 and unless the

order setting bail specifies to the contrary, whenever bail is set pursuant to Rule 3:26-1,

bail may be satisfied by the deposit in court of cash in the amount of ten-percent of the

amount of bail fixed and defendant's execution of a recognizance for the remaining ninety

percent. No surety shall be required unless the court fixing bail specifically so orders.

When cash equal to ten-percent of the bail fixed is deposited pursuant to this Rule, if the

cash is owned by someone other than the defendant, the owner shall charge no fee for the

deposit other than lawful interest and shall submit an affidavit or certification with the

deposit so stating and also listing the names of any other persons for whom the owner has

deposited bail. The person making the deposit authorized by this subsection shall file an

affidavit or certification concerning the lawful ownership thereof, and on discharge such

cash may be returned to the owner named in the affidavit or certification.

Source-R.R. 3:9-5(a)(b)(c)(d)(e)(f)(g). Paragraph (a) amended June 29, 1973 to be

effective September 10, 1973; paragraph (a) amended July 16, 1979 to be effective

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September 10, 1979; paragraph (g) adopted November 5, 1986 to be effective January 1,

1987; paragraph (a) amended November 7, 1988 to be effective January 2, 1989;

paragraphs (f) and (g) amended July 14, 1992 to be effective September 1, 1992;

paragraphs (a), (b) and (c) amended July 13, 1994 to be effective September 1, 1994;

paragraph (g) amended February 27, 1995 to be effective immediately; paragraphs (a),

(d), (e), (f) and (g) amended June 15, 2007 to be effective September 1, 2007[.];

paragraph (g) amended

to be effective

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II. Non Rule Recommendations

A. Proposed Amendments to the Notice of Appeal Rights and Time to File

a Petition for Post-Conviction Relief Form

The Supreme Court Clerk’s Office asked the Committee to consider a request to

revise the court rules to require that trial counsel of record in a criminal matter file a

notice of appeal even if trial counsel will not continue to represent the defendant for

purposes of appeal. Currently, AOC Directive #3-10 includes the Notice of Appeal

Rights and Time to File a Petition for Post-Conviction Relief form (hereafter “Notice of

Appeal Rights form”), as well as the related colloquy. The form was developed in

response to State v. Molina, 187 N.J. 531 (2006) and was revised to conform with

amendments to the rules governing post-conviction relief. Typically, the form is signed

by trial counsel and the defendant at sentencing, and it requires that private trial counsel

notify the Office of the Public Defender if the defendant will be seeking the services of

the Public Defender for purposes of appeal. Specifically, it provides:

(To be filled out by Private Counsel Only)

If defendant decides to appeal and cannot afford to

continue to retain private counsel, I will notify the

Office of the Public Defender within 45 days of

today’s date.

Before the Public Defender’s Office can become counsel of record in an appeal, a

defendant must be deemed indigent.

See N.J.S.A. 2A:158A-5; R. 2:7-2(a). Indigency

determinations are conducted by the Criminal Case Management Office in the county

1 Pursuant to N.J.S.A. 2A:158A-5 the duties of the Public Defender include providing legal representation to

indigent defendants charged with the commission of an indictable offense and such representation includes direct

appeals.

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where the conviction occurred.

See N.J.S.A. 2A:158A-15.1. In practice, there can be a

delay in the filing of a notice of appeal if an indigency determination is not made before

the private attorney notifies the Public Defender’s Office that the defendant wishes to

seek its services. On the other hand, if a private attorney files a notice of appeal on

behalf of the defendant, the attorney will be the “counsel of record” for purposes of the

appeal. A concern arises if the defendant cannot afford the private attorney’s services,

because the attorney may not be able to subsequently withdraw from the case.

In analyzing this issue, the Committee explored whether a rule amendment is

necessary to: (1) require that trial counsel of record in a criminal matter file a notice of

appeal even if trial counsel will not continue to represent the defendant for purposes of

appeal, and (2) to allow a private attorney who files a notice of appeal to withdraw from

the case if there is a subsequent finding that the defendant is not indigent, and therefore is

ineligible for the services of the Office of the Public Defender. The Committee also

considered how often the substantive rights of defendants are being affected by the

failure to file a timely notice of appeal.

The Committee sought the perspectives of various members, including: (1)

Appellate Division, (2) Office of the Public Defender, (3) private defense bar, including

the ACDL and the State Bar Association, (4) Criminal Division Managers, and (5)

Federal Criminal Practice. Specifically, the Committee explored where the delay in filing

the Notice of Appeal occurs. First, it was expressed that Appellate Division did not favor

2 The standards to determine indigency and establish eligibility for the services of the Office of the Public Defender

are in N.J.S.A. 2A:158A-14.

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a procedure that would result in an automatic filing of a notice of appeal for every

defendant who is sentenced, because many defendants do not appeal from their

convictions. Thus, an “automatic” appeal filing system would unnecessarily create an

increased workload with the end result being the dismissal of appeals that otherwise

would not have been filed. Furthermore, the Committee recognized that once an appeal

is filed, the trial court no longer has jurisdiction to handle motions for reconsideration.

See R. 4:49-2. As a result, if an appeal was automatically filed in every case, pursuant to

R. 2:9-1, the trial court would generally lack jurisdiction to hear motions for

reconsideration.

A member of the private defense bar expressed that as a general practice private

defense attorneys will file the appeal on behalf of their clients or will inform defendants

about the procedures to obtain an indigency determination and to seek the services of the

Public Defender as set forth in R. 2:7-2. R. 2:7-2 provides:

(a) Indictable Offenses. All persons convicted of an

indictable offense who are not represented by the

Office of the Public Defender and who desire to

appeal, and who assert they are indigent, shall

complete and file, without fee, with the court in which

they were convicted, the appropriate form prescribed

by the Administrative Director of the Courts, which

shall be made available to them by the court in which

they were convicted. They shall thereupon be referred

to the Office of the Public Defender, which shall

represent them on such appeal or review and on such

subsequent post-conviction proceedings or appeal

therein as would warrant the assignment of counsel.

It was expressed that familiarity with the process for an indigency determination to

be made, for purposes of appeal, may vary based upon the experience of the attorney.

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The Office of the Public Defender expressed the view that substantive rights of

defendants are being affected by the failure to file a timely notice of appeal. It was noted

that oftentimes defendants, who are represented by private trial counsel, have completed

their jail sentences before the Appellate Section of the Public Defender’s Office receives

the court-approved 5A indigency application that is necessary to secure representation for

the filing of an appeal.

3 The Public Defender’s Office recommended revising the Notice

of Appeal Rights form to reflect the language in R. 2:7-2(a) that the court, as opposed to

the Public Defender’s Office, is responsible for processing 5A applications and making

indigency determinations. Specifically, the Office of the Public Defender recommended

that the Notice of Appeal Rights Form should be amended as follows:

Delete the address of the Office of the Public Defender from the bottom of

the form and replace it with the address of the Criminal Case Management

Office for the county where the conviction occurred, and

Amend language on the Notice of Appeal Rights Form to state:

(To be filled out by private counsel only)

If defendant decides to appeal and cannot afford to

continue to retain private counsel, I will direct him/her

to contact the Criminal Division Manager’s Office in

the county of venue and complete an indigency

application for appointment of the Office of the Public

Defender within 45 days of today’s date.

3 Historically, Form 5A (“Application for the Assignment of Defense Counsel Pursuant to Supreme Court Rule

1:12-9” (printed in Appendix of Forms of the Rules Governing the New Jersey Courts (1968)) was used to ascertain

a defendant’s eligibility for the services of the Public Defender, consistent with the guidelines in N.J.S.A. 2A:158A-

14. The colloquial term “5A” is still routinely used to refer to these types of applications. Currently, the “indigency

application” is reflected in pages 1 and 3 of the Uniform Defendant Intake Report that is utilized by the courts. See

AOC Directive #1-06 (Jan. 3, 2006). The same type of “indigency” evaluation would be conducted by the Criminal

Case Management Office for a defendant who retained private counsel for the trial and seeks representation by the

Public Defender for purposes of appeal.

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The proposed revisions to the form would help ensure that the indigency

determination is made before the matter is referred to the Office of the Public Defender.

In that way, the Public Defender’s Office, as opposed to the private attorney, will be able

to file the notice of appeal on behalf of indigent individuals who have been deemed

eligible for its services.

With respect to a rule revision, representatives from the Public Defender’s Office

expressed the view that it would not be helpful to revise the court rules to provide that

after a private attorney files a notice of appeal the attorney may withdraw from the case,

if there is no finding of indigency. It was discussed that under R. 2:5-1, filing a notice of

appeal is a complicated process, involving completion of a case information statement,

ordering transcripts, and service upon various parties and the trial court. Subsequent

withdrawal by the private attorney could potentially raise issues, such as, determining

who is responsible for handling the appeal and for the payment of transcripts. The Public

Defender’s Office expressed the view that the matter that was raised in the referral to the

Committee could be best dealt with by revising the Notice of Appeal Rights form and

educating private attorneys and defendants about the indigency determination process.

The Committee is recommending that the Notice of Appeals Rights form be

revised as proposed by the Office of the Public Defender. The Committee is also

recommending that if the revisions are approved, the AOC should issue guidance to

further educate practitioners about the procedures to file timely notices of appeal and to

seek evaluations of indigency to determine a defendant’s eligibility for the services of the

Office of the Public Defender. The revisions to the form follow.

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SUPERIOR COURT OF NEW JERSEY

LAW DIVISION -

COUNTY

INDICTMENT NO.

STATE OF NEW JERSEY

- v. -

NOTICE OF APPEAL RIGHTS

AND TIME TO FILE A PETITION

FOR POST-CONVICTION RELIEF

Defendant

, hereby certify as follows:

I am the defendant in the above referenced case.

I am being represented in this sentencing by

and

he/she has reviewed this Form with me.

Appeal Rights. I understand that:

(a)

An appeal means having my case reviewed by a higher court,

(b)

I have a right to appeal my conviction(s) and sentence(s),

(c)

I have the right to be represented by counsel for that appeal,

(d)

If I am unable to hire private counsel for my appeal, the Office of the Public Defender will

represent me or arrange for my representation, and

(e)

If I fail to file a notice of appeal with the Appellate Division within 45 days of today’s date, and

unless I obtain a thirty-day extension of time on a showing of good cause and absence of

prejudice, I will lose my right to appeal.

Time Limits To File a Petition for Post-Conviction Relief. I understand that I have 5 years from

today’s date to file a petition for post-conviction relief, unless an exception to this general rule applies, as

set forth in R. 3:22-12.

I am appearing before Judge

, for sentencing today.

I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing

statements made by me are willfully false, I am subject to punishment.

DATED:

Defendant

I have reviewed this Form with defendant and I am satisfied that he/she has been fully advised of the

rights it describes.

DATED:

Counsel for Defendant

(To Be Filled Out By Private Counsel Only)

If defendant decides to appeal and cannot afford to retain private counsel, I will direct him/her to contact

the Criminal Division Manager’s Office in the county of venue and complete an indigency application for

appointment of the Office of the Public Defender within 45 days of today’s date.

DATED:

Counsel for Defendant

For information on appellate representation by the Office of the Public Defender, please write to the

Superior Court Criminal Case Management Office in the county where the conviction occurred:

SPACE FOR ADDRESS OF

CRIMINAL CASE MANAGEMENT OFFICE

(Complete in duplicate: one fully executed copy to be delivered to the court for the court jacket and one to be

given to the defendant.)

Page 24

B. Proposed Amendment to the Grave’s Act Plea Form

The Committee considered proposed revisions to the Grave’s Act Plea Form to

conform to N.J.S.A. 2C:43-6c; 6g and N.J.S.A. 2C:39-5. N.J.S.A. 2C:43-6c provides as

follows:

A person who has been convicted under subsection b.

or d. of N.J.S.2C:39-3, subsection a. of N.J.S.2C:39-4,

subsection a. of section 1 of P.L.1998, c.26 (C.2C:39-

4.1), subsection a., b. or c. of N.J.S.2C:39-5,

subsection a. or paragraph (2) or (3) of subsection b. of

section 6 of P.L.1979, c.179 (C.2C:39-7), or

subsection a., b., e. or g. of N.J.S.2C:39-9, or of a

crime under any of the following sections: 2C:11-3,

2C:11-4, 2C:12-1 b., 2C:13-1, 2C:14-2 a., 2C:14-3 a.,

2C:15-1, 2C:18-2, 2C:29-5, who, while in the course

of committing or attempting to commit the crime,

including the immediate flight therefrom, used or was

in possession of a firearm as defined in 2C:39-1 f.,

shall be sentenced to a term of imprisonment by the

court. The term of imprisonment shall include the

imposition of a minimum term. The minimum term

shall be fixed at, or between, one-third and one-half of

the sentence imposed by the court or three years,

whichever is greater, or 18 months in the case of a

fourth degree crime, during which the defendant shall

be ineligible for parole.

The Committee agreed that the Grave’s Act Plea form should be revised to be consistent

with the statute. The revisions to the plea form follow.

Page 25

Revised Form Promulgated by Directive (xx/xx/xxxx), CN 11172-English

Page 1 of 1

New Jersey Judiciary

Supplemental Plea Form for Graves Act Offenses (N.J.S.A. 2C:43-6c)

You are pleading to a Graves Act offense. This means:

A. You are pleading guilty to possession of a firearm with intent to use it against the person of

another or to murder, aggravated manslaughter, manslaughter, aggravated assault, kidnapping,

aggravated sexual assault, aggravated criminal sexual contact, robbery, burglary or escape; or if

one of the following offenses occurred on or after January 13, 2008: possession of a shotgun,

N.J.S.A. 2C:39-3b; possession of a defaced weapon, N.J.S.A. 2C:39-3d; possession of a weapon

(firearm) for an unlawful purpose, N.J.S.A. 2C:39-4a; possession of a firearm while in the course

of committing a CDS offense or other offenses, N.J.S.A. 2C:39-4.1a; unlawful possession of a

machine gun, handgun, rifle or shotgun, N.J.S.A. 2C:39-5a, b or c; certain persons not to have

weapons, N.J.S.A. 2C:39-7; or manufacture, transport, disposition and defacement of machine

guns, sawed-off shotguns, defaced firearms or assault firearms. N.J.S.A. 2C:39-9a, b, e or g.

AND/OR

B. You are also admitting, by virtue of this plea, that while in the course of committing or

attempting to commit one of the crimes, including the immediate flight therefrom, you used or

were in possession of a firearm.

1. Do you understand that because of your plea of guilty to

[Yes]

[No]

you will be subject to a minimum period of time before you will be eligible

for parole (a parole ineligibility term) under the Graves Act (as set forth in

question 7 on the three-page plea form)?

2. Do you understand that by pleading guilty and admitting that you used or

were in possession of a firearm while in the course of committing or

attempting to commit one of the crimes, you are waiving your right to have

a jury determine, beyond a reasonable doubt, that you used or possessed a

firearm during the course of committing or attempting to commit one of the

crimes?

[Yes]

[No]

3. Does any other mandatory sentencing provision apply to the

Graves Act count that provides for a greater period of parole

ineligibility (e.g., NERA, Three Strikes, Murder)?

[Yes]

[No]

[NA]

If so, which one?

Date

Defendant

Defense Attorney

Prosecutor

Page 26

C. Proposed Amendments to the Supplemental Plea Form for Theft of a Motor

Vehicle or Unlawful Taking of a Motor Vehicle and a New Form – Notice to

Defendants Convicted of Eluding

N.J.S.A. 2C:29-2b provides that when a person is convicted of eluding an officer

“[i]n addition to the penalty prescribed under this subsection or any other section of law,

the court shall order the suspension of that person's driver's license, or privilege to

operate a vessel

, whichever is appropriate, for a period of not less than six months or

more than two years.” The statute further provides that the court shall inform the person

orally and in writing that if the person is convicted of personally operating a motor

vehicle during the period of the license suspension or postponement the person shall,

upon conviction, be subject to the penalties set forth in N.J.S.A. 39:3-40. According to

the eluding statute, “[a] person shall be required to acknowledge receipt of the written

notice in writing.” N.J.S.A. 2C:29-2b. The Committee considered whether to revise the

Supplemental Plea Form for Theft of a Motor Vehicle or Unlawful Taking of a Motor

Vehicle to include the driver’s license suspension and possible future penalty for persons

convicted of eluding, N.J.S.A. 2C:29-2b, and/or (2) develop a separate notice form

setting forth the possible future penalties for individuals who are convicted of operating a

motor vehicle while their driver’s license is suspended as a result of an eluding

conviction.

4 The eluding statute also references notification to defendants about the penalties in N.J.S.A. 12:7-83 when a

defendant is convicted of operating a vessel on the waters of the state during the period of a license suspension. The

notice form being proposed by the Committee only includes notice as it relates to future penalties related to driver’s

license suspensions. It does not include the future penalties related to suspension of licenses to operate a vessel on

the waters of the State.

Page 27

The Committee reviewed the statutory provisions and agreed that the

Supplemental Plea Form for Theft of a Motor Vehicle or Unlawful Taking of a Motor

Vehicle should be revised to include the driver’s license suspension applicable to

convictions for eluding. The Committee was also of the view that a separate notice form

for eluding convictions should be developed to notify individuals convicted of eluding

about potential future penalties if the person is convicted of driving a motor vehicle

during the suspension period. The Committee agreed that a separate notice form should

be developed because the statutory notifications are necessary when eluding convictions

result from either a guilty plea or a trial verdict. As the bulk of the eluding charges

involve driver’s license suspensions, the Committee is of the view that the notice form

need not include references to N.J.S.A. 12:7-83, which governs penalties for operating a

vessel on the waters of the State when the license to operate is suspended or revoked.

The proposed revisions to the Supplemental Plea Form for Theft of a Motor

Vehicle or Unlawful Taking of a Motor Vehicle and the New Notice for Eluding Offenses

follow.

Page 28

New Jersey Judiciary

Supplemental Plea Form for Eluding (N.J.S.A. 2C:29-2b) or Theft of a Motor

Vehicle or Unlawful Taking of a Motor Vehicle (N.J.S.A. 2C:20-2.1)

Revised Form Promulgated by Directive # __________ (XX/XX/XXXX), CN 11168-English

Page 1 of 1

The following question needs to be answered only if you are pleading guilty for a violation of

N.J.S.A. 2C:29-2b for eluding.

1. Do you understand that if you plead guilty you will be required to forfeit

your driver’s license for a period of time between 6 months and 2 years?

[Yes]

[No]

The following questions need to be answered only if you are pleading guilty for a violation of

N.J.S.A. 2C:20-2 for theft of an automobile and the offense occurred on or after April 2, 1991, or

for a violation of N.J.S.A. 2C:20-10 for unlawful taking of a motor vehicle ("Joyriding") and the

offense occurred on or after August 2, 1993.

1. Do you understand that if you plead guilty you will be required to forfeit

your driver’s license?

[Yes]

[No]

1st Offense - 1 year license suspension

2nd Offense - 2 year license suspension

3rd or Subsequent Offense - 10 year license suspension

2. Do you understand that if you plead guilty you will be required to pay a

mandatory penalty?

[Yes]

[No]

The mandatory penalties are as follows:

1st Offense

$ 500

2nd Offense

$ 750

3rd or Subsequent offense

$1,000

Total Penalty

3. Do you understand that if you plead guilty to more than one theft of an

automobile or unlawful taking of a motor vehicle that the license

forfeitures and mandatory penalties imposed can be consecutive to each

other?

[Yes]

[No]

Date

Defendant

Defense Attorney

Prosecutor

Page 29

Form Promulgated by Directive # XX-XX (XX/XX/20XX)

Page 1 of 1

Effective XX/XX/20XX. CN____________

Superior Court of New Jersey

State of New Jersey

Law Division -

County

Indictment No.

NOTICE TO DEFENDANT

PURSUANT TO N.J.S.A. 2C:29-2b

MANDATORY SUSPENSION OF DRIVING

PRIVILEGES

Defendant

This is to inform you that, as a person convicted of Eluding pursuant to N.J.S.A. 2C:29-2b, your driver’s

license is suspended for a period of _______________ [6 months to 2 years], effective today. In

addition, if during the period of suspension you are convicted of personally operating a motor vehicle,

you will be subject to the penalties set forth in N.J.S.A. 39:3-40:

Upon conviction for a first offense, a fine of $500;

Upon conviction for a second offense, a fine of $750, and imprisonment in the county jail for at

least 1 day but not more than 5 days;

Upon conviction for a third offense or subsequent offense, a fine of $1,000, and imprisonment in

the county jail for 10 days.

In addition, under certain circumstances, conviction for a first, second, third or subsequent

offense could result in revocation of your motor vehicle registration privilege and/or an additional period

of your driver’s license suspension.

You have also been informed of the above consequences orally in open court by the Judge.

, the defendant in the above-entitled cause(s)

having been convicted of Eluding pursuant to N.J.S.A. 2C:29-2b, hereby acknowledge receipt of

written notice of the penalties for driving while suspended for a violation of said statute. I have

also been informed of these consequences by the judge orally in open court.

Dated:

Defendant

APPROVED BY:

J.S.C

To be completed by defendant if driver’s license is not collected at time of sentencing:

Full name:

Address:

Date of Birth:

Eye Color:

Gender:

Page 30

III. Matters Previously Sent to the Supreme Court

A. State v. Henderson and State v. Delgado -Recording Requirements For

Out-Of-Court Identification Procedures

On February 2, 2012, the Committee filed an off-cycle report: “Report Of The

Supreme Court Committee Criminal Practice Committee On Revisions To The Court

Rules Addressing Recording Requirements For Out-Of Court Identification Procedures

And Addressing The Identification Model Charges,” which recommended that the

Supreme Court adopt the Committee’s proposed revisions to the court rules and the

Model Criminal Jury Charge Committee’s proposed revisions to the identification jury

charges to address State v. Henderson, 208 N.J. 208 (2011), State v. Chen, 208 N.J. 307

(2011) and State v. Delgado, 188 N.J. 48 (2006). The report was published for public

comment in a Notice to the Bar dated March 9, 2012.

Thereafter, the Supreme Court considered the recommendations that were filed by

the Criminal Practice Committee, along with a separate report that was filed by the

Model Criminal Jury Charge Committee. The Court adopted new R. 3:11 – Record of an

Out-of-Court Identification Procedure and amendments to R. 3:13-3(c) (now codified at

R. 3:13-3(b)(1)(J)) governing discovery by the defendant. Additionally, the Court

revised three Model Criminal Jury Charges: (1) In-Court Identification Only, (2) Out-of-

Court Identification Only, and (3) In-Court and Out-of-Court Identifications. On July 19,

2012, Administrative Director of the Courts Glenn A. Grant issued a Notice to the Bar

5 The Model Criminal Jury Charge Committee filed a separate report explaining the revisions to the identification

jury charges.

Page 31

distributing the rule amendments and the identification model jury charges. The

revisions went into effect on September 4, 2012.

Page 32

State v. O’Brien – Distribution of Written Jury Instructions

In State v. O’Brien, 200 N.J. 520 (2009), the Supreme Court asked the Civil and

Criminal Practice Committees to consider developing standards for the submission of

written jury instructions to the jury during deliberations. On March 28, 2012, the

Committee filed an off-cycle report, which recommended revisions to R. 1:8-7 and R. 1:8-

8 to provide that written jury charges must be provided to the jury in all criminal cases,

unless the preparation of the instructions will cause an undue delay in the trial. To

successfully implement the rule amendments, the Committee also filed the following

recommendations: (1) “To allow for appropriate training and transition for judges and

practitioners, the Committee recommends that, if adopted, the rule revisions be phased-in

for at least one Judicial College cycle, but no less than six months, after the rule is

approved. If necessary, standard procedures to implement the rule should be promulgated

by the Administrative Director of the Courts;” (2) “To assist judges and parties in

preparing and tailoring the written instructions to the circumstances in a specific case, the

Committee recommends that the Model Criminal Jury Charge Committee post on the

judiciary internet and infonet webpages two additional versions of each model criminal

jury charge omitting the corresponding footnotes and annotations and one using male

pronouns and the other female pronouns;” (3) “The Committee recommends that the

Model Criminal Jury Charge Committee consider developing a standard instruction

addressing the distribution of written charges to the jury and the use of those charges

during deliberations.” The report was published, for public comment, in a notice to the bar

dated April 2, 2012.

Page 33

Earlier this term, the Court considered the rule proposals and recommendations

that were filed by the Criminal Practice Committee and the Civil Practice Committee.

The Court adopted revisions to R. 1:8-8(a) that were proposed by the Civil Practice

Committee, but deferred action on the rule amendments that were submitted by the

Criminal Practice Committee. It asked the AOC to begin implementing the

recommendations in the Committee’s report to create a clean version of the charges to be

made available on the judiciary’s internet website and also on the judiciary’s internal

infonet website.

Editor’s Note: The AOC has developed the Automated Model Criminal Jury Charges

System (AMCJS). Specifically, AMCJCS permits the user to:

Select the charges that are needed for the criminal trial;

Combine them in the order they will appear in the final document;

Select the gender of the defendant and automatically change all singular

pronouns, such as “he/she,” “his/her,” “him/her,” and himself/herself

throughout the charges;

Select whether to keep or delete the footnotes; and

Generate a Word document that can be saved on the person’s computer and

edited like any other Word document.

Effective January 2, 2013, the system was made available to judges and judiciary staff.

It is expected that the AMCJCS will be made available on the internet for non-judiciary

users in February 2013.

Page 34

IV. Rule Amendments and Other Issues Considered and Rejected

A. R. 3:13-3 - State v. W.B. – Discovery of Law Enforcement Notes

In State v. W.B., 205 N.J. 588, 607 (2011), the Supreme Court reiterated that “law

enforcement officers may not destroy contemporaneous notes of interviews and

observations at the scene of a crime after producing their final reports.” The Court held

that R. 3:13-3 “encompasses the writings of any police officer under the prosecutor’s

supervision as the chief law enforcement officer of the county.” State v. W.B., 205 N.J.

at 608. The Court asked the Committee to consider “any necessary clarification” to the

court rules. Ibid. During the past term, the Committee considered proposed amendments

to R. 3:13-3(c)(8) (now codified at R. 3:13-3(b)(1)(H)), which provides that post-

indictment discovery by the defendant shall include “police reports that are within the

possession, custody and control of the prosecutor.” After an extensive discussion and

consideration of a variety of rule proposals, the Committee has concluded that it is not

necessary to revise the court rules. The Committee reached the conclusion that the

present court rules need not be revised in light of W.B., and that any issues that may arise

concerning the interpretation of the discovery rules, post-W.B., should be litigated.

Before reaching this conclusion, the primary discussions among the Committee

members focused upon whether the court rules should place an affirmative duty on law

enforcement to preserve their notes or whether the language in W.B. and the guidance set

forth in Attorney General Directive No. 2011-2, Regarding Retention And Transmittal Of

Contemporaneous Notes Of Witness Interviews And Crime Scenes, are sufficient.

Page 35

As the Committee explored the scope of possible rule revisions, it became

apparent that the members had different views on what language, if any, should be

recommended for inclusion in the discovery rules. From one perspective, concerns were

raised regarding a rule amendment that would give operational direction to law

enforcement or would regulate police procedures. Some members were of the view that

if the discovery rule is amended, it should be limited to codifying the language in W.B.

Specifically, that only law enforcement notes of “crime scene observations” and

“contemporaneous notes of interviews” would be discoverable.

Others expressed the view that the discovery rule already required an affirmative

duty for the State to provide all law enforcement notes in discovery and that W.B. did not

change that duty. It was expressed that if the discovery rule was amended, it should

affirmatively state that all law enforcement notes are to be provided to the defense in

discovery, unless they were protected by the work-product exception. Otherwise, it was

suggested, that the court rule should not be amended.

Although the Committee ultimately decided not to recommend a rule amendment,

in its discussion of possible variations, it discussed whether to revise paragraph (c)(8) to

delete the phrase “which are within the possession, custody or control of the prosecutor.”

While this suggestion was designed to clarify that the police officer’s notes need not be in

the physical possession of the prosecutor to fall within the scope of the discovery rule, the

Committee recognized that phrase “which are within the possession, custody or control of

the prosecutor” is also used in other subsections of the rule. The Committee recognized

that if it proposed this amendment, it would be necessary to consider whether other

Page 36

subsections of the rule, which include the “which are within the possession, custody or

control of the prosecutor” language, should also be revised.

In discussing the language in W.B., where the Supreme Court referred to a law

enforcement officer’s preservation of the contemporaneous notes of interviews or

observations of the crime scene, the Committee queried how to define the term “crime

scene.” Specifically, the Committee discussed what would constitute a crime scene for a

crime involving ongoing criminal conduct, such as eluding. Members in favor of a broad

interpretation of the term “crime scene” suggested that the rule could be modified to state

that discovery includes, police reports, including contemporaneous notes of interviews or

observations of the crime scene or other matters related to the investigation. Other

members expressed that the court rule should be more limited and track the language in

W.B., leaving the determination of what encompasses a crime scene for litigation.

In W.B., the Court stated that “the time has come to join other states that require

the imposition of ‘an appropriate sanction’ whenever an officer’s written notes are not

preserved.” State v. W.B., 205 N.J. at 608. The Committee considered this issue, yet it

was unable to reach a consensus on whether the rules should set forth a sanction if the

officer’s notes are not preserved, or if a sanction should be developed by caselaw. The

Committee ultimately decided the appropriate sanction for noncompliance with W.B.,

may have to be resolved by caselaw.

Finally, the Committee recognized that it appeared that in its opinion, the Court

used the terms “police officer” and “law enforcement officer” interchangeably. It queried

whether a rule amendment should refer to a “law enforcement officer” or a “police

Page 37

officer,” being of the view that the term “law enforcement officer” is broader than “police

officer.” As the Committee ultimately decided not to recommend a rule amendment, it

decided not to extensively explore which terms should be embodied in a rule amendment.

After a lengthy discussion, the Committee revisited the language in W.B. where

the Court asked the Committee to consider “any necessary clarification of the Rules.”

Committee members were unaware of noncompliance with W.B., at this point, because of

the present language of the court rules. The Committee unanimously agreed that it was

not necessary to clarify the rules at this time. Rather, it concluded that any issues that

may arise concerning the interpretation of the discovery rules, post-W.B., should left for

litigation. The Committee was made aware that in response to W.B., the Model Criminal

Jury Charge Committee has drafted an adverse inference charge to address the failure of a

police officer or law enforcement officer to preserve notes. Furthermore, recognizing

that discovery practices in the municipal courts may differ from those in criminal courts,

the Committee did not express any views on the proposed amendments to R. 7:7-7 that

are being recommended by the Municipal Court Practice Committee.

Page 38

State v. Morgan - Ex Parte Communications Between the Judge and

Jury During Deliberations

In State v. Morgan, 423 N.J. Super. 453, 458 (App. Div. 2011), certif. granted, 210

N.J. 477 (2012) the Appellate Division addressed: “whether a series of communications

between the trial judge and the [deliberating] jury, conducted without the knowledge and

outside the presence of both the prosecutor and defense counsel, warrants reversal of

defendant’s conviction.”6

Although the Morgan court did not find that the ex parte

communications reached the level of reversible error, it reiterated that ex parte

communications between judges and jurors during deliberations are improper. Id. at 467.

The Morgan court did not specifically ask the Committee to develop a rule about ex

parte communications, however, during the 2007-2009 term, the Committee considered a

similar issue about post-verdict, ex parte communications between judges and jurors. In

its 2007-2009 report, the Committee agreed that, consistent with the current law, the judge

should not engage in ex parte communications with the jury during deliberations or in

post-verdict, ex parte communications about their deliberations. Additionally, regarding

post-verdict discussions that do not involve deliberations, in the 2007-2009 report, 14

members were in favor of a per se prohibition on post-verdict discussions between judges

and juries in criminal cases; 2 members were in favor of permitting post-verdict

In Morgan, the Appellate Division also addressed whether the deliberating jury should be permitted to take home

the jury instructions over the weekend. State v.Morgan, 423 N.J. Super. at 468-74. It asked the Committee to

develop recommendations to the Supreme Court to either explicitly forbid the practice, or permit it under specific

guidelines.” Id. at 474. In its off-cycle report that addressed State v. O’Brien and the distribution of written

instructions to the jury, the Committee unanimously agreed that the jury should not be permitted to take home the

written jury instructions. The Committee recommended revisions to R. 1:8-8(a) that would specifically provide that

written jury instructions are given to the jury for its use in the jury room during deliberations. As discussed in Item

# III.B. above, the Court deferred action on the proposed rule amendments.

Page 39

discussions between judges and juries in criminal cases if the discussion took place on the

record; and 4 members were in favor of permitting post-verdict discussions between judges

and juries in criminal cases with procedures left to the sound discretion of the trial judge.

The Committee did not recommend a rule revision to address this issue.

This term, the Committee discussed that in Morgan, the Appellate Division

reiterated that “ex parte communications between a judge and a deliberating jury are

improper.” State v. Morgan, 423 N.J. Super. at 467 (citing State v. Basit, 378 N.J. Super.

125, 131, 134 (App. Div. 2005)). The Committee recognized that its decision in the 2007-

2009 report to prohibit this practice is consistent with Morgan. The Committee

unanimously agreed that there is no need to amend the court rules. On June 5, 2012, the

Supreme Court granted certification in State v. Morgan. The Committee will revisit this

topic, if necessary, in the future, after the Court issues its decision.

Page 40

C. R. 3:9-3 - State v. Hand - Joinder of Municipal and Criminal Cases - Double

Jeopardy and Guilty Pleas

In State v. Hand, 416 N.J. Super. 622, 629 (App. Div. 2010), the Appellate

Division held that the “same evidence” test for double jeopardy, set forth in State v.

DeLuca, 108 N.J. 98 (1987) applies to guilty pleas. In Hand, the Appellate Division

rejected the argument that the “same evidence” test should only apply to trials. In light of

the Hand opinion, in a letter dated May 16, 2011, Hon. Roy F. McGeady, P.J.M.C.,

Chair, Municipal Practice Committee, requested that the Committee “consider an

amendment of the Part III Rules, perhaps, R. 3:9-2 or R. 3:9-3, to provide for a

mandatory joinder of a plea of guilty to any indictable crimes, along with a plea of guilty

to any underlying lesser infraction based upon the ‘same evidence’ analysis at the time

the guilty pleas are entered in Superior Court.” The Conference of Criminal Presiding

Judges reviewed this matter and was of the view that the court rules need not be

amended. The Criminal Practice Committee considered this matter and agreed with the

position of the Conference of Criminal Presiding Judges.

In support of this decision, the Committee recognized that AOC Directive #4-11

(July 11, 2011) provides that “[i]f a Superior Court judge is aware of an associated

municipal court complaint, whether motor vehicle or quasi-criminal, and for good reason

does not adjudicate that associated complaint, the Superior Court judge shall instruct the

prosecutor to return the original paperwork to the appropriate municipal court without

delay, but no later than 7 days after such direction, so that the municipal court can

schedule a court date for that matter.” The Committee concluded that the current

Page 41

procedures in AOC Directive #4-11 adequately explains how superior court judges can

handle potential double jeopardy issues, and therefore, no rule revisions are necessary.

Page 42

State v. Moran – Standards to Impose a License Suspension Pursuant to

N.J.S.A. 39:5-31

In State v. Moran, 202 N.J. 311 (2010), the Supreme Court developed standards

for Municipal Court and Law Division judges to consider in determining whether to

impose a license suspension pursuant to N.J.S.A 39:5-31. That statute grants a judge the

authority to revoke a motorist's driving privileges for the willful violation of certain

motor vehicle statutes. State v. Moran, 202 N.J. at 324-25. Last term, the Municipal

Court Practice Committee decided not to recommend a rule amendment.

The Criminal Practice Committee considered whether the factors to be considered

in determining whether to impose a driver’s license suspension under N.J.S.A. 39:5-31

should be codified in a court rule. The Committee discussed the view that, unless

expressly directed to do so, the Committee should not incorporate substantive law in the

court rules. Rather, the court rules should only address procedure. The Committee also

discussed whether there was a problem that resulted from the Moran decision, and if not,

the Committee should be cautious in recommending revisions to court rules. The

Committee membership was unaware of any problems resulting from Moran, and agreed

that the substantive law in Moran need not be restated in the court rules. It decided not

to recommend a rule amendment. The Committee agreed, however, that, if necessary, the

Conference of Criminal Presiding Judges can issue a memorandum to Criminal Judges

with respect to the Moran decision.

Page 43

E. Revisions to the Statutes Governing Expungements

A private attorney filed a letter asking the Committee to consider recommending

amendments to N.J.S.A. 2C:52-19 and N.J.S.A. 2C:52-30 addressing the release of

expunged records and disclosure of expungement orders. The Committee discussed the

inquiry and recognized that the inquiry involved proposed statutory revisions, as opposed

to revisions to the court rules. The Committee therefore agreed that the inquiry should be

considered by the legislature and decided not to take action on the matter.

Page 44

F. Guilty Plea Cases – Missouri v. Frye and Lafler v. Cooper

In Missouri v. Frye, ___ U.S. ___, 132 S. Ct. 1399, 182 L. Ed. 2d 379 (2012) and

Lafler v. Cooper, ___ U.S. ___, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012), the United

States Supreme Court addressed issues surrounding a defendant’s right to the effective

assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984) during plea

negotiations and defense counsel’s duty to properly communicate formal plea offers to

defendant. In Frye, defense counsel failed to communicate the plea offer to the defendant

and the offer expired. After being re-arrested, the defendant entered a plea to the initial

charges without an agreement and received a more severe sentence than the plea offer. In

Lafler, the defendant rejected the plea offer based on defective legal advice from defense

counsel. Defendant proceeded to trial, was convicted and received a more severe

sentence than the plea offer. Both cases resulted in the defendants losing out on what

would have been more favorable outcomes.

The Committee considered if the court rules or plea forms need to be revised in

light of these opinions, with respect to formal plea negotiations and offers occurring pre-

indictment and post-indictment. The Committee agreed that post-indictment, plea offers

are in writing or are reflected in the record as part of a court event. The Committee

expressed that because pre-indictment court programs vary across the state, not all pre-

indictment plea offers are reflected as part of a court event. Nonetheless, the Committee

recognized that the vast majority of pre-indictment plea offers are in writing or on the

record. A suggestion was made to consider revising the arraignment/status conference

order to add a line to identify if there was a pre-indictment offer and if it was

Page 45

communicated to the defendant. The Committee disagreed with this suggestion. A

member expressed that the court rules were not designed to adapt to ineffective assistance

of counsel claims. The Committee also recognized that Frye and Lafler did not develop

new substantive law in New Jersey. See State v. Nichols, 71 N.J. 358, 468-69 (1976)

(providing that “an attorney’s conduct is incompetent when a plea offer is never

communicated by the attorney to the client”); State v. Powell, 294 N.J. Super. 557, 565

(App. Div. 1996)) (recognizing that “the plea bargain stage is a critical stage with regard

to the right to effective assistance of counsel”). The Committee concluded that there is

no need to craft or revise a court rule to address the Frye and Lafler cases. The

Committee also determined that there is no need to amend the plea forms at this time.

Page 46

G. Preservation of Evidence

Several years ago the Office of the Public Defender proposed a rule

recommendation mandating the preservation of evidence by prosecuting authorities.

Shortly thereafter, the Division of Criminal Justice issued a Directive addressing the

storage of DNA evidence. As a result, storage of DNA evidence has not been a problem

and the rule proposal was not considered extensively by the Committee. Thereafter, the

Public Defender’s office reported that the preservation of large physical evidence was

problematic. Given technological advances, the Office of the Public Defender asked that

the Committee reconsider this topic. Last term, the Committee created a subcommittee

comprised of representatives from the Attorney General’s Office, Prosecutor’s Office,

Office of the Public Defender and private defense bar to address this issue.

On January 6, 2011, the Attorney General issued Directive #2011-1, which

updated the Attorney General Guidelines for the Retention of Evidence. In light of the

Directive and current practices, this matter was withdrawn by the Office of the Public

Defender.

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H. R. 3:9-3(d) – Time Limits for the State to Move to Annul Plea

Agreements

The Appellate Division Rules Committee requested that the Committee consider

revisions to R. 3:9-3(d) to shorten the time in which the State must exercise its right to

annul a plea agreement. The Committee began exploring this issue to determine if it

raised widespread concerns or if it could be addressed without amending the court rules.

The Appellate Division Rules Committee recently reconsidered the proposed amendment

and decided to withdraw its request that R. 3:9-3(d) be amended.

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R. 3:15-3 – Joinder of Indictable and Non-Indictable Complaints

A private citizen requested that the Committee consider amending R. 3:15-3(a)(1)

to specify that joinder of a non-indictable complaint with a indictable criminal complaint

applies when the charges are against the same defendant. The inquiry raised concerns

about grouping together a complaint with indictable charges that are being filed against

an arrested person with a separate complaint with non-indictable charges that are being

filed by the arrested person against the police. The Committee discussed whether in this

scenario, where the complaints arose out of the same incident and there are different

defendants (i.e., a citizen-defendant in one complaint and police-defendant in another),

both complaints should proceed in Superior Court.

To address this issue, the Committee discussed whether the rule should be

amended to provide that all complaints involving the same incident should be forwarded

to the County Prosecutor’s Office for screening to determine whether the County

Prosecutor’s Office will handle the non-indictable complaint, dismiss the complaint or

refer the complaint back for disposition in the municipal court. A discussion then ensued

about whether the court rules governing joinder were developed to cover the issue raised

by the inquiry.

Being unaware of the extent of this issue, the Committee was concerned about any

unintended consequences that may flow from a revision to court rules. Therefore, it

decided not to recommend a rule amendment at this time. The Committee agreed that it

was more appropriate to refer this matter to the Municipal Court Practice Committee to

determine whether the issue raised was an isolated incident or if it is a widespread

Page 49

concern. The Committee agreed to revisit this matter, if necessary, based upon feedback

from the Municipal Court Practice Committee.

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Scheduling Conflicts For Municipal Court and Superior Court Matters

A private attorney asked that the Committee consider whether there is a need to

develop guidance addressing scheduling conflicts for criminal defense attorneys who

handle municipal and criminal matters. Prior to its deletion, R. 1:2-5 provided guidance

to attorneys on the priority of matters for scheduling purposes. The official comment to

R. 1:2-5 provides:

The deleted rule attempted to accord preference in the

scheduling of cases for trial, hearing or argument

across trial court and Appellate Division lines. The

rule was deleted as the Supreme Court takes the

position that the issue of calendar preference is best

addressed administratively rather than in the context of

court rules. Nonetheless, as a matter of policy, the

preferences enumerated in the rule should be looked to

as guidelines in determining priority of cases

scheduled for trial, hearing or argument in the trial

courts and the Appellate Division. These preferences

include: (1) all contested matters where a principal

issue is the custody, status, welfare and protection of

minors; criminal and quasicriminal cases, election

actions, actions (except negligence actions) to which

the State, a county, municipality or other public or

quasipublic agency is a party; (2) if the action is in a

trial court, all cases to be tried without a jury; (3)

appeals on leave granted pending in the appellate

courts; (4) workers' compensation appeals; and (5)

such other cases as any court may from time to time

order.

The Committee reviewed the commentary along with several AOC Directives

governing scheduling matters.

Specifically, it discussed whether a current problem with

7 See AOC Directive #24-63 “Conflicting Trial Engagements” (December 20, 1963); AOC Directive #22-68 “Trial

Motions on Fridays” (May 2, 1969); and AOC Directive #1-84 “Directive on Statewide DWI Backlog Reduction”

(July 26, 1984).

Page 51

attorney conflicts exists warranting a need to develop further guidance. The Committee

discussed that Superior Court cases normally take precedence over municipal matters,

usually with older cases being scheduled first. Often Superior Court judges can make

arrangements to accommodate any scheduling conflicts that arise when attorneys must

appear in two courts at the same time. The Committee’s discussion did not reveal a

problem with scheduling conflicts warranting a revision to the court rules. It also

concluded that there is no need for the Administrative Office of the Courts issue a

directive on this issue.

Page 52

K. State v. Parker - Oral Argument in Petitions for Post-Conviction Relief

In State v. Parker, 212 N.J. 269 (2012) the New Jersey Supreme Court considered

whether the defendant was entitled to oral argument in connection with his first petition

for post-conviction relief. In Parker, the defendant urged that “a defendant is entitled to

oral argument as a matter of right in support of his petition for post-conviction relief and

that a denial of oral argument, without an explicit waiver, represents a denial of a

defendant's Sixth Amendment right to the effective assistance of counsel.” Id. at 277.

Alternatively, the defendant contended that the trial court abused its discretion by

dispensing with oral argument. In considering these issues, the Supreme Court

“decline[d] to hold as a matter of law that each defendant has a right to present oral

argument to the trial judge in support of a petition for post-conviction relief.” Id. at 278.

Nevertheless, the Court was satisfied that the defendant in the Parker case was entitled to

oral argument. Therefore, the Court reversed and remanded the matter for further

proceedings.” Id.

In considering this issue, the Court recognized that “R. 3:22 contains no explicit

statement with respect to whether a defendant is entitled to present oral argument in

support of his petition for post-conviction relief.” Id. at 280. It analyzed the two

reported Appellate Division cases that have commented on the issue, State v. Flores, 228

N.J. Super. 586, 588 (App. Div. 1988), certif. denied, 115 N.J. 78 (1989) and State v.

Mayron, 344 N.J. Super. 382, 384 (App. Div. 2001) and noted its agreement with the

statement in State v. Mayron, “that there is a strong presumption in favor of oral

argument in connection with an initial petition for post-conviction relief.” State v.

Page 53

Parker, 212 N.J. at 282-83. It recognized that the Mayron panel listed several factors that

a trial judge should weigh when deciding whether to hear oral argument or to dispense

with it, such as, the apparent merits and complexity of the issues, whether oral argument

by counsel would add to the written positions, and whether the goals and purposes of the

post-conviction procedure are furthered by oral argument. State v. Parker, 212 N.J. at

282 (citing State v. Mayron, 344 N.J. Super. at 387). In Parker, the Supreme Court

agreed that the trial judge has discretion to consider and weigh the factors enumerated in

Mayron when considering whether to grant oral argument, and that in considering the

factors, “they should be approached with the view that oral argument should be granted.”

State v. Parker, 212 N.J. at 282. The Court further stated that “[j]ust as when determining

whether a defendant is entitled to an evidentiary hearing in connection with his petition

for post-conviction relief the facts should be ‘view[ed] in the light most favorable to a

defendant,’ so too, in determining whether to entertain oral argument, the facts should be

viewed through the same generous lens.” State v. Parker 212 N.J. at 282 (citing State v.

Preciose, 129 N.J. 451, 463 (1992)).

Finally, the Court explained that when a trial judge determines that the arguments

presented in the papers filed in connection with the petition for post-conviction relief do

not warrant oral argument, “the judge should provide a statement of reasons that is

tailored to the particular application, stating why the judge considers oral argument

unnecessary.” State v. Parker, 212 N.J. at 283. The Criminal Practice Committee

considered whether to recommend revisions to the court rules in light of Parker, which

would describe procedures for trial judges to follow when deciding whether to grant oral

Page 54

argument. The Committee reached the conclusion that it was unnecessary to revise the

court rules to codify the substantive law discussed in Parker. It was of the view that the

parties and judges should be aware of the Parker opinion and be knowledgeable of the

standards that should be applied when a request for oral argument is made.

Page 55

VI. Other Business

A. Request for Comment on Confidentiality of Addresses in Citizen

Complaints and Criminal Complaints of Domestic Violence Victims

By memo dated May 17, 2011, Acting Administrative Director Grant requested,

on behalf of the Supreme Court Committee on Public Access to Court Records, that the

Criminal Practice Committee consider the following questions:

1. Should the home address in a citizen complaint be

confidential when the complainant is alleging that he or she

has been assaulted and fears that the attacker may threaten or

intimidate him or her if the address is made public?

2. Should the address of a domestic violence victim who files a

criminal complaint for assault be confidential even though

the matter is a criminal misdemeanor and not specifically

identified as a domestic violence matter?

3. Is there a confidential form that is used in the Criminal

Division when a domestic violence victim files a criminal

complaint?

The Criminal Practice Committee discussed this matter and voted 18-5 in favor of

confidentiality of addresses in citizen complaints and in criminal complaints of domestic

violence victims. The majority of Committee members were in favor of confidentiality

and pointed out that confidentiality can only be accomplished if the victim’s address is

not on, or is redacted from, the complaint. However, while the majority of Committee

members were in favor of confidentiality with respect to public access to this

information, some concerns were raised about the impact of a confidentiality rule on the

requirements for discovery, pursuant to R. 3:13-3, in criminal cases. It was submitted

that a rule governing confidentiality of the address of a domestic violence victim should

Page 56

balance the need to provide immediate security and/or peace of mind to an alleged victim

in a way that is consistent with a defendant's discovery rights. It was suggested that a

criminal defense attorney can make an application to the court for relevant identification

information in an individual case when it is needed. Additionally, the Committee

recognized that if addresses for certain victims were deemed confidential, there would

need to be procedures in place to allow for contact and communications with the court.

The majority of the Criminal Practice Committee was in favor of confidentiality of

the address of a domestic violence victim. However, the Committee expressed that if a

confidentiality rule is proposed there should be procedures in place to allow for

communications between the victim and the court. Also, consideration must be made

with respect to the confidentiality and the discovery obligations of the parties under R.

3:13-3. By a letter dated March 23, 2012, the Committee forwarded its comments to the

Supreme Court Advisory Committee on Public Access to Court Records.

Page 57

B. Electronic Signature of a Judge on the Judgment of Conviction

The Committee was informed that an order relaxing R. 3:21-5 “to permit the

Superior Court to issue and transmit to the New Jersey Department of Corrections and the

New Jersey State Parole Board electronic judgments of conviction containing an

electronically affixed signature of a Superior Court judge rather than an original signature

and having the same force and effect as such judgments of conviction containing a

judge’s handwritten signature.” The Committee will revisit this issue in the future if a

revision to the court rules is necessary.

Page 58

V. Matters Held for Future Consideration

A. State v. Robert Handy

In State v. Handy, 421 N.J. Super. 559, 565 (App. Div. 2011), certif. granted, 209

N.J. 99 (2012), the Appellate Division held that “a defendant who wishes to present a

substantive defense based upon at least some evidence, or who otherwise wishes to put

the State to its burden of proving the elements of the offense beyond a reasonable doubt,

should not be required to first submit to a trial restricted to the issue of insanity. Such an

insanity trial, which might result in the defendant’s indefinite commitment in a mental

institution, should not have to proceed first.” The Handy panel asked the Criminal

Practice Committee to consider implementing procedures, consistent with the case, to

address situations when a defendant asserts both a self-defense claim and an insanity

defense. On January 18, 2012, the Supreme Court granted certification in Handy. The

Committee agreed to defer consideration of Handy until the resolution of the Supreme

Court appeal.

Page 59

B. Pretrial Intervention (PTI) Guidelines

In the 2004-2007 term, the Committee was asked to consider whether the PTI

Guidelines should be updated in light of State v. Moraes-Pena, 386 N.J. Super. 569 (App.

Div. 2006) in which the Appellate Division reversed the trial court’s order admitting the

defendant into the Pretrial Intervention (PTI) Program over the prosecutor’s objection.

The Committee continued its consideration of this topic and considered State v.

Werkheiser, App. Div. Dkt. No. A-2355-07T4 (unpublished opinion) (App. Div. May 12,

2010) in which the Appellate Division affirmed the order denying defendant’s enrollment

into PTI, but stated that “PTI was not designed to be a prosecutor’s tool to gain

cooperation, and in fact acknowledgement of guilt is not required under the guidelines.”

(Slip. op. at 2). A month later, in State v. Green, 413 N.J. Super. 556 (App. Div. 2010),

the Appellate Division considered circumstances surrounding a defendant’s application

for PTI. It stated that the “Criminal Practice Committee may wish to consider developing

a uniform set of PTI application forms and directions, and uniform procedures to be used

in processing those applications.” Id. at 562.

Thereafter, in State v. Randall, 414 N.J. Super. 414 (App. Div. 2010), the

Appellate Division stated that “[i]n this case, the Prosecutor's Office incorrectly

attempted to condition defendant's participation in PTI upon her pleading guilty.” Id. at

421. The court quoted Guideline 4 governing the PTI program, which states:

Enrollment in PTI programs should be conditioned upon

neither informal admission nor entry of a plea of guilt.

Enrollment of defendants who maintain their innocence

should be permitted unless the defendant's attitude would

render pretrial intervention ineffective.

Page 60

Id. at 421 (quoting Pressler, Current New Jersey Court Rules,

Guideline 4 at 1067.]

In Randall, the court also referenced the official comment to Guideline 4 governing PTI,

which explains that "[n]either admission of guilt nor acknowledgment of responsibility is

required. Steps to bar participation solely on such grounds would be an unwarranted

discrimination." Id. at 421. Thus, the Appellate Division concluded that “the

Prosecutor's Office erred in requiring defendant to plead guilty as a prerequisite for

admission into PTI.” Id. at 421.

In light of these cases, the Committee discussed whether a subcommittee should

be formed to address PTI matters. Prior to forming a subcommittee, the Committee was

informed that the Conference of Criminal Presiding Judges began considering a report

containing proposed revisions to PTI guidelines and procedures. The Committee decided

to wait until the Presiding Judges reviewed the PTI proposals to determine whether to

form a subcommittee to handle the issues raised in State v. Moraes-Pena, State v.

Werkheiser, State v. Randall and State v. Green.

Recognizing that the PTI program has remained relatively unchanged from its

inception in 1970 and that the law governing PTI has evolved over the years, in May, the

Supreme Court authorized referral of a proposal for revisions to the PTI program to the

Committee for its consideration. Upon receipt of the referral, the Committee formed a

subcommittee comprised of judges, prosecuting attorneys and defense attorneys to review

and comment upon the proposal. The subcommittee is continuing to review the proposal,

and will, in the future, provide recommendations to the full committee for consideration.

Page 61

C. Presentence Investigation Reports

In the 2007-2009 term, the Committee submitted a package of recommendations

to the Supreme Court addressing corrections to presentence investigation (PSI) reports,

including: developing a uniform protocol to memorialize challenges and corrections

made to the presentence investigation report; incorporating the court’s findings regarding

challenges and corrections; and forwarding revised presentence investigation reports to

the parties and interested entities. The Committee also recommended adding

“disclaimer” language to the “offense circumstances” section of the presentence

investigation report to clarify that the offense circumstances includes descriptions of

charges of which the defendant may not have been found guilty by a jury or may not have

pled guilty to and that the offense circumstances section should be read in conjunction

with the final charges and the defendant's version of the offense. The Court considered

these recommendations and the Committee was asked to further consider the following:

Developing a procedure to ensure that a defendant’s challenge to a criminal

or court history record is resolved, memorialized and forwarded to the

appropriate parties and entities.

Reconsidering the recommendation to add “disclaimer” language to the

offense circumstances section of the PSI report, in that it may not

sufficiently address the impact upon the use of PSI reports by outside

agencies and during post-sentencing proceedings, such as in Sexually

Violent Predator cases and parole board hearings, where PSI reports are

relied upon in subsequent hearings to determine the actual facts of the case.

The Committee will continue to explore these issues.

Page 62

D. Trial De Novo Standard of Review – Municipal Appeals

With the increasing high caliber and experience of municipal court judges, the

Committee considered whether the de novo standard of review for municipal court

appeals should be revised and to consider alternative standards of review for these

matters. Over the years, as evidenced in the governing statutes, court rules and

administration through the Administrative Office of the Courts (AOC), there has been

substantial improvement in the municipal court system. As a centralized division of the

AOC, the Municipal Court Services Division provides comprehensive training and

technological support to the municipal courts across the state. The AOC also provides a

vast informational site for municipal court judges and staff, which includes

correspondence, training, statistics and valuable resources to enable the municipal courts

to run smoothly and efficiently. See Judiciary Infonet, Municipal Courts Web. Newly-

appointed municipal court judges attend an orientation seminar covering legal topics

ranging from bail to search and seizure and from motor vehicle offenses to domestic

violence.

Administrative areas, such as budget and fiscal management, court management

techniques and systems are covered as well. Moreover, at an annual conference of

Municipal Court Judges, training has been provided on a wide variety of subject matters,

including bench demeanor and professionalism, court management, and updates on recent

legislation and caselaw. Municipal court judges are also encouraged to participate in

brainstorming efforts to improve the court rules and procedures. This training, along

with the increasing high caliber and experience of municipal court judges, since R. 3:23

Page 63

was developed provides strong support that the de novo review for municipal appeals is

no longer necessary. The Committee has formed a subcommittee to explore alternative

standards of review for municipal appeals. The subcommittee is continuing to review

this topic.

Page 64

Telephonic Issuance of Drug Offender Restraining Orders and Nicole’s

Law Restraining Orders

The Drug Offender Restraining Order Act of 1999 (“DOROA”), N.J.S.A. 2C:35-

5.7 and Nicole’s Law, N.J.S.A. 2C:14-12, provide authority for the court to issue

restraining orders when a person is charged with eligible drug and sex crimes or

disorderly persons offenses as set forth in the respective statutes. Amendments to the

DOROA that were enacted in 2011 permit the issuance of pretrial DOROA orders in

certain circumstances when an applicant is not physically present in the same location as

the court when the application is made. When the legislative amendments to DOROA

were pending, the Supreme Court issued an order, dated March 8, 2011, relaxing Part III

(Criminal) and Part VII (Municipal Court) of the court rules “so as to permit the issuance

of restraining orders, pursuant to (a) N.J.S.A. 2C:35-5.7 (the “Drug Offender Restraining

Order Act of 1999” or DOROA); or (b) N.J.S.A. 2C:14-12 and 2C:44-8 (“Nicole’s

Law”), by telephone, radio, or other electronic communication upon the sworn oral

testimony of a law enforcement officer or prosecuting attorney communicated

electronically to the issuing judge, pursuant to procedures approved by the Supreme

Court and promulgated by the Administrative Director of the Courts.” The Court also

asked the Criminal Practice Committee and Municipal Court Practice Committee to draft

appropriate rule revisions, for its consideration, to comport with the rule relaxation and

the DOROA legislation, should it be enacted.

A joint subcommittee comprised of members from the Criminal Practice

Committee and the Municipal Court Practice Committee was formed to develop

Page 65

procedures to allow for the issuance of DOROA and Nicole’s Law orders, as a condition

of release, by telephone, radio or other means of electronic communication (hereafter

referred to as “telephonic procedures” or “electronic communication”) in situations when

the law enforcement officer or prosecuting attorney (hereafter referred to as “law

enforcement officer”) seeking the order is not physically present in the same location as

the court. With respect to the telephonic procedures governing the issuance of DOROA

and Nicole’s Law orders, the subcommittee took the approach to draft revisions to R. 3:3-

1 and to forward its recommendations to the Criminal Practice Committee for adoption

and to the Municipal Court Practice Committee for corollary revisions to the appropriate

Part VII rules. The Criminal Practice Committee reviewed proposed amendments to R.

3:3-1 and has asked that the subcommittee consider developing further revisions to

address conditions of release for a defendant who is charged with a crime or offense

involving domestic violence.

Additionally, the joint subcommittee began exploring whether to revise R. 3:26-1

to develop procedures for the enforcement of non-monetary conditions of release

including, but not limited to, conditions imposed pursuant to DOROA or Nicole’s Law.

The joint subcommittee recognized the need to examine this issue; however, it was

cognizant that developing enforcement procedures goes beyond the Court’s referral to the

Criminal Practice Committee and the Municipal Court Practice Committee to revise the

court rules in accordance with its March 8, 2011 order. The Committee considered this

issue and will seek clarification that the Supreme Court’s referral extends to developing

Page 66

procedures to handle the enforcement of violations of monetary and non-monetary

conditions of pretrial release.

Page 67

Respectfully submitted,

Honorable Lawrence Lawson, Chairman

Honorable, Victor Ashrafi, Vice-Chairman

Honorable Christine Allen-Jackson

Honorable Joseph Cassini, III

Honorable Gerald Council

Honorable Martin Cronin

Honorable Mark Fleming

Honorable Albert Garofolo, Ret.

Honorable Edward Jerejian

Honorable Samuel Natal

Honorable Mitchel Ostrer

Honorable Sheila Venable

Richard Barker, Esq.

Robert Bernardi, Esq.

Hilary Brunell, Esq.

John Cannel, Esq.

Rachit Choksi, Esq.

Jeffrey Coghlan, Esq.

Philip James Degnan, Esq.

Donald DiGioia, Esq.

Mark Eliades, Esq.

Patrice Hayslett, Esq.

Dale Jones, Esq.

James Lynch, Esq.

John McMahon, Esq.

John McNamara, Esq.

Boris Moczula, Esq.

Dennis Murphy, Esq.

Ricardo Solano, Esq.

Ronald Susswein, Esq.

Stephen Taylor, Esq.

David Weaver, Esq.

Dolores Pegram Wilson, Esq.

Staff: Joseph J. Barraco, Esq.

Melaney S. Payne, Esq.

New NJ Statutes , Recent cases and Court Rules

Thursday, March 28, 2013

Proposed Court Rule To Address Electronic Court Systems, Electronic Records and Electronic Signatures

Proposed Court Rule To Address Electronic Court Systems, Electronic Records and Electronic Signatures

Wednesday, March 27, 2013

REPORT OF THE SUPREME COURT COMMITTEE ON CRIMINAL PRACTICE

Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national a