Wednesday, March 27, 2013

REPORT OF THE SUPREME COURT COMMITTEE ON CRIMINAL PRACTICE


January 31, 2013
REPORT OF THE
SUPREME COURT COMMITTEE
ON
CRIMINAL PRACTICE
2011 – 2013 TERM
i
TABLE OF CONTENTS
CONTENTS
PAGE
I.
Rule Amendments Recommended for Adoption ................................................... 1
A.
Proposed Amendments to R. 3:14-1 – Updates to the Venue Rule ................ 1
B.
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
B.
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
B.
State v. Henderson and State v. Delgado - Recording Requirements For
Out-Of-Court Identification Procedures .......................................................... 27
C.
State v. O’Brien – Distribution of Written Jury Instructions .......................... 29
IV. Rule Amendments and Other Issues Considered and Rejected .......................... 31
A.
R. 3:13-3 - State v. W.B. – Discovery of Law Enforcement Notes ................ 31
B.
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
PAGE
D. State v. Moran – Standards to Impose a License Suspension Pursuant
to N.J.S.A. 39:5-31 .......................................................................................... 39
E.
Revisions to the Statutes Governing Expungements ...................................... 40
F.
Guilty Plea Cases – Missouri v. Frye and Lafler v. Cooper ........................... 41
H.
Preservation of Evidence ................................................................................. 43
I.
R. 3:9-3(d) – Time Limits for the State to Move to Annul Plea
Agreements ...................................................................................................... 44
I.
R. 3:15-3 – Joinder of Indictable and Non-Indictable Complaints ................. 45
J.
Scheduling Conflicts For Municipal Court and Superior Court Matters ........ 47
K.
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
A.
State v. Handy ................................................................................................. 55
B.
Pretrial Intervention Guidelines ...................................................................... 56
C.
Presentence Investigation Reports .................................................................. 58
D. Trial De Novo Standard of Review – Municipal Appeals .............................. 59
E.
Telephonic Issuance of Drug Offender Restraining Orders and
Nicole’s Law Restraining Orders .................................................................... 61
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I.
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.
1.
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.
2.
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.
(c) Whenever the body of any person who died as a
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.
3.
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.
4
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:
(c) Acts of forgery, [embezzlement, conversion or
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.
4.
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.
5.
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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6.
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.
7.
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
6
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.
(c) Whenever the body of any person who died as a result of an offense is found in
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]
(c) Acts of forgery, [embezzlement, conversion or 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.
[(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.
(c) . . . 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.
(c) . . . 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.
1
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.
16
where the conviction occurred.
2
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.
17
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:
1.
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
2.
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
I,
, hereby certify as follows:
1.
I am the defendant in the above referenced case.
2.
I am being represented in this sentencing by
and
he/she has reviewed this Form with me.
3.
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.
4.
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.
5.
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.)
21
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.
Revised Form Promulgated by Directive (xx/xx/xxxx), CN 11172-English
Page 1 of 1
22
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
23
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
4
, 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.
24
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.
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
25
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
Form Promulgated by Directive # XX-XX (XX/XX/20XX)
Page 1 of 1
Effective XX/XX/20XX. CN____________
26
Superior Court of New Jersey
State of New Jersey
Law Division -
County
Indictment No.
v.
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.
I,
, 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:
27
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.
5
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.
28
distributing the rule amendments and the identification model jury charges. The
revisions went into effect on September 4, 2012.
29
B.
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.
30
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.
31
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.
32
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
33
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
34
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.
35
B.
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
6
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.
36
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.
37
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
38
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.
39
D.
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.
40
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.
41
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
42
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.
43
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.
44
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.
45
I.
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
46
concern. The Committee agreed to revisit this matter, if necessary, based upon feedback
from the Municipal Court Practice Committee.
47
J.
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.
7
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).
48
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.
49
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.
50
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
51
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.
52
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
53
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.
54
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.
55
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.
56
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.
57
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.
58
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:
1.
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.
2.
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.
59
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
60
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.
61
E.
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
62
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
63
procedures to handle the enforcement of violations of monetary and non-monetary
conditions of pretrial release.
64
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.
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