Monday, December 29, 2008

3:25-1 Upon Motion of the Prosecutor Before or During Trial

(a) Pre-Indictment. A complaint may be administratively dismissed by the prosecutor without presentation to the grand jury in which event said prosecutor shall report the dismissal and the basis therefor to the Assignment Judge and shall notify the defendant.
(b) Post-Indictment. Upon motion by the prosecuting attorney, an indictment, accusation or complaint, or any court thereof, may be dismissed prior to trial by order of the judge to whom the same has been assigned for trial. During trial an indictment or accusation, or any count thereof may be dismissed by the trial judge on motion by the prosecuting attorney with the consent of the defendant.

Thursday, December 18, 2008

3:24. Appeals from Orders in Courts of Limited Criminal Jurisdiction

(a) Either the prosecuting attorney or the defendant may seek leave to appeal to the Superior Court, Law Division from an interlocutory order entered before trial by a court of limited criminal jurisdiction.
(b) The prosecuting attorney may appeal, as of right, a pre-trial or post-trial judgment dismissing a complaint and, notwithstanding the provisions of paragraph (a), an order suppressing evidence entered in a court of limited criminal jurisdiction.
(c) Appeals pursuant to this rule shall be taken within 20 days after the entry of such order by filing with the Superior Court, Law Division in the county of venue a notice of motion for leave to appeal under paragraph (a) or the notice of appeal under paragraph (b), except that an appeal from the grant of a motion to suppress shall be taken within 30 days after the entry of the order. A copy of the notice shall be filed with the clerk of the court below, and a copy thereof shall be served on the prosecuting attorney as defined by R. 3:23-9 or on the defendant or defendant's attorney, as appropriate, at least 10 days prior to the return date fixed therein. The original filed with the court and the copy served shall have annexed thereto copies of all papers of record and any affidavits essential to the determination of the motion and shall be accompanied by a brief. The respondent shall file and serve any answering brief and other papers in opposition at least 3 days before the hearing. With respect to interlocutory applications, the court may grant or deny leave to appeal on terms and may elect simultaneously to grant the motion and decide the appeal on the merits on the papers before it, or it may direct the filing of additional briefs or make such other order as it deems appropriate for the expeditious disposition of the matter. A copy of any order or judgment entered by it shall be promptly transmitted to the clerk of the court below.
(d) On appeal by the State from the grant of a motion to suppress the matter shall be tried de novo on the record. In cases in which the Attorney General or county prosecutor did not appear in the municipal court, the State shall be permitted to supplement the record and to present any evidence or testimony concerning the legality of the contested search and seizure. The defendant shall be permitted to offer related evidence in opposition to the supplementary evidence offered by the State.

3:23-9. Prosecuting Attorney Defined

In all appeals under R. 3:23 the prosecuting attorney shall be:

(a) The Attorney General, where required by law.

(b) The municipal attorney, in a case involving a violation of a municipal ordinance.

(c) The county prosecutor, in all other cases.

(d) With the assent of the prosecuting attorney and the consent of the court, the attorney for a complaining witness or other person interested in the prosecution may be permitted to act for the prosecuting attorney; provided, however, that the court has first reviewed the attorney certification submitted on a form prescribed by the Administrative Director of the Courts, ruled on the contents of the certification, and granted the attorney's motion to act as private prosecutor for good cause shown. The finding of good cause shall be made on the record.

3:23-8. Hearing on Appeal

(a) Plenary Hearing; Hearing on Record; Correction or Supplementation of Record; Transcript for Indigents. If a verbatim record or sound recording was made pursuant to R. 7:8-8 in the court from which the appeal is taken, the original transcript thereof duly certified as correct shall be filed by the clerk of the court below with the criminal division manager's office, and a certified copy served on the prosecuting attorney by the clerk of the court below within 20 days after the filing of the notice of appeal or within such extension of time as the court permits. In such cases the trial of the appeal shall be heard de novo on the record unless it shall appear that the rights of either party may be prejudiced by a substantially unintelligible record or that the rights of defendant were prejudiced below in which event the court to which the appeal has been taken may either reverse and remand for a new trial or conduct a plenary trial de novo without a jury. The court shall provide the municipal court with reasons for the remand. The court mayalso supplement the record and admit additional testimony whenever (1) the municipal court erred in excluding evidence offered by the defendant, (2) the state offers rebuttal evidence to discredit supplementary evidence admitted hereunder, or (3) the record being reviewed is partially unintelligible or defective. If the appellant, upon application to the court appealed to, is found to be indigent, the court shall order the transcript of the proceedings below furnished at the county's expense if the appeal involves violation of a statute and at the municipality's expense if the appeal involves violation of an ordinance. If no such record was made in the court from which the appeal is taken, the appeal shall operate as an application for a plenary trial de novo without a jury in the court to which the appeal is taken.
(b) Briefs. Briefs shall be required only if questions of law are involved on the appeal or if ordered by the court and shall be filed and served prior to the date fixed for hearing or such other date as the court fixes.
(c) Waiver; Exception. The appeal shall operate as a waiver of all defects in the record including any defect in, or the absence of, any process or charge laid in the complaint, and as a consent that the court may, during or before the hearing of the appeal, amend the complaint by making the charge more specific, definite or certain, or in any other manner, including the substitution of any charge growing out of the act or acts complained of or the surrounding circumstances of which the court from whose judgment or sentence the appeal is taken had jurisdiction, except that if the appeal is from a conviction for an indictable offense, the appeal shall not operate as a consent that the complaint may be amended so as to charge such an offense or a new or different indictable offense, unless the defendant agrees to such amendment.
(d) Defenses Which Must Be Raised Before Trial. The defenses of double jeopardy, lack of jurisdiction in the court, failure of the complaint to charge an offense, the unconstitutionality of the statute, regulation promulgated pursuant to statute or ordinance under which the complaint is made and all other defenses and objections based on defects in the institution of the prosecution or in the complaint must be raised by motion and determined in accordance with R. 3:10.
(e) Disposition by Superior Court, Law Division. If the defendant is convicted, the court shall impose sentence as provided by law. If the defendant is acquitted, the court shall order the defendant discharged, the conviction in the court below set aside, and the return of all fines and costs paid by the defendant. An appropriate judgment shall be entered and a copy thereof transmitted to the court below.
(f) Appearance by Prosecuting Attorney. The prosecuting attorney shall appear and act on behalf of the respondent at the hearing.

3:23-7. Dismissal of Appeal

If the appeal shall be dismissed for failure to comply with the requirements of R. 3:23-2 or 3:23-8(a) or (b) or for failure to prosecute, the matter and the record therein shall forthwith be remanded to the court from which the appeal was taken for execution of the judgment therein.

3:23-6. Transmittal of Recognizance or Cash Deposit

The judge or clerk of the court below shall transmit to the finance division manager's office any recognizance taken in accordance herewith or cash deposited in lieu of such recognizance.

3:23-5. Relief Pending Appeal

(a) Relief From Custodial Sentence. If a custodial sentence has been imposed, and an appeal from the judgment of conviction has been taken, the defendant shall be admitted to bail by a judge of the Superior Court in accordance with the standards set forth in R. 3:26-1a.
(b) Relief From Fine. A sentence to pay a fine, a fine and costs, or a forfeiture may be stayed by the court in which the conviction was had or to which the appeal is taken upon such terms as the court deems appropriate.
(c) Relief From Order for Probation. An order for probation may be stayed if an appeal is taken.

3:23-4. Duties of Clerks of the Trial Court and Superior Court, Law Division

(a) Preparation of Transcript. Upon the filing of the notice of appeal, the clerk of the court below shall forthwith deliver to the criminal division manager's office the complaint, the judgment of conviction, the exhibits retained by the clerk, and a transcript of the entire docket in the action, and the criminal division manager's office shall deliver copies thereof to theprosecuting attorney on request.
(b) Docketing; Hearing Date. Upon the filing of a copy of the notice of appeal, the affidavit and the payment of the filing fees, as provided by R. 3:23-2, the criminal divisionmanager's office shall docket the appeal and shall thereafter fix a date for the hearing of the appeal and mail written notice thereof to the prosecuting attorney and the appellant, or, if the appellant is represented, the appellant's attorney.

3:23-3. Notice of Appeal; Contents

The notice of appeal shall set forth the title of the action; the name and the address of the appellant and appellant's attorney, if any; a general statement of the nature of the offense; the date of the judgment; the sentence imposed; whether the defendant is in custody; and if a fine was imposed; whether it was paid or suspended; and the name of the court from which the appeal is taken. There shall be included in the notice of appeal a statement as to whether or not a stenographic record or sound recording was made pursuant to R. 7:8-8 in the court from which the appeal is taken. Where a verbatim record of the proceeding was taken, the notice of appeal shall also contain the attorney's certification of compliance with R. 2:5-3(a) (request for transcript) and R. 2:5-3(d) (deposit for transcript) or certification of the filing and service of a motion for abbreviation of transcript pursuant to R. 2:5-3(c).

3:23-2. Appeal; How Taken; Time

The defendant, a defendant's legal representative, or other person aggrieved by a judgment of conviction, or the defendant or State, if aggrieved by a final post-judgment order entered by a court of limited jurisdiction, shall appeal therefrom by filing a notice of appeal with the clerk of the court below within 20 days after the entry of judgment. Within five days after the filing of the notice of appeal, one copy thereof shall be served on the prosecuting attorney, as hereinafter defined, and one copy thereof shall be filed with the Criminal Division Manager's office together with the filing fee therefor and an affidavit of timely filing of said notice with the clerk of court below and service on the prosecuting attorney (giving the prosecuting attorney's name and address). On failure to comply with each of the foregoing requirements, the appeal shall be dismissed by the Superior Court, Law Division without further notice or hearing. However, if the appeal is from a final judgment of the Superior Court arising out of a municipal court matter heard by a Superior Court judge sitting as a municipal court judge, the appeal shall be to the Appellate Division in accordance with R. 2:2-3(a)(1) and the time limits of R. 2:4-1(a) shall apply.

3:23-1. Exclusive Method of Review

Except as provided by R. 2:2-3(b), review of a judgment of conviction in a criminal action or proceeding in a court of limited criminal jurisdiction shall be by appeal as provided by R. 3:23.

3:22-12. Limitations

(a) General Time Limitations. A petition to correct an illegal sentence may be filed at any time. No other petition shall be filed pursuant to this rule more than 5 years after rendition of the judgment or sentence sought to be attacked unless it alleges facts showing that the delay beyond said time was due to defendant's excusable neglect.

(b) Capital Causes; Petition. In cases in which the death penalty has been imposed, defendant's petition for post-conviction relief must be filed within thirty days of the denial of certiorari or other final action by the United States Supreme Court in respect of defendant's direct appeal.

3:22-11. Determination; Findings and Conclusions; Judgment; Supplementary Orders

In making final determination upon a petition, either on motion for dismissal or after hearing, the court shall state separately its findings of fact and conclusions of law, and shall enter a judgment, which shall include an appropriate order or direction with respect to the judgment or sentence in the conviction proceedings and any appropriate provisions as to rearraignment, retrial, custody, bail, discharge, correction of sentence, or as may otherwise be required.

3:22-10. Presence of Defendant at Hearing; Preference

The proceedings shall be given preference and be determined promptly. A defendant in custody may be present in court in the court's discretion and shall be entitled to be present when oral testimony is adduced on a material issue of fact within the defendant's personal knowledge.

3:22-9. Amendments of Pleadings; Answer or Motion by Prosecutor

Amendments of pleadings shall be liberally allowed. Assigned counsel may as of course serve and file an amended petition within 25 days after assignment. Within 30 days after service of a copy of the petition or amended petition, the prosecutor shall serve and file an answer thereto or move on 10 days' notice for dismissal. If a motion for dismissal is denied the State's answer shall be filed within 15 days thereafter. The court may make such other orders with respect to pleadings as it deems appropriate.

3:22-8. Contents of Petition; Verification

The petition shall be verified by defendant and shall set forth with specificity the facts upon which the claim for relief is based, the legal grounds of complaint asserted, and the particular relief sought. The petition shall include the following information: (a) the date, docket number, and content of the indictment or accusation upon which the conviction was based and the county where filed; (b) the date and content of the sentence or judgment complained of and the name of the presiding judge; (c) any appellate proceedings brought from the conviction, attaching a copy of opinions therein; (d) any previous post-conviction proceedings relating to the same conviction, giving date and nature of claim and date and nature of disposition, and concerning any appeal therefrom, together with copies of opinions therein, trial and appellate; (e) whether petitioner was represented by counsel in any of the proceedings aforementioned, naming the counsel in each such proceeding, and stating whether counsel was in each instance retained or assigned; (f) whether and where defendant is presently confined. Argument, citations and discussion of authorities shall be omitted from the petition, but may be submitted in a separate memorandum of law.

3:22-7. Docketing; Service on Prosecutor; Assignment for Disposition

The clerk shall make an entry of the filing of the petition in the proceedings in which the conviction took place, and, if it is filed pro se, shall forthwith transmit a copy thereof to the prosecutor of the county. If the petition is filed by an attorney, that attorney shall serve a copy thereof on the prosecutor before filing and shall file proof, certification or acknowledgement of service with the petition. The clerk shall promptly notify the Assignment Judge or judge designated by the Assignment Judge of the filing of the petition, who shall forthwith refer the matter for disposition to a trial judge.

3:22-6. Indigents; Waiver of Fees; Assignment of Counsel, and Grant of Transcript; Assigned Counsel May Not Withdraw

(a) Waiver of Fees; Assignment on First Petition. At the time of filing of a petition under this Rule a defendant who is not represented by the Office of the Public Defender may annex thereto a sworn statement alleging indigency in the form prescribed by the Administrative Director of the Courts, which form shall be furnished to the defendant by the criminal division manager's office. The criminal division manager's office shall forthwith submit the same to the Presiding Judge of the Criminal Division who, if satisfied therefrom that the defendant is indigent, shall order the criminal division manager's office to file the petition without payment of filing fees. At the same time, and without separate petition therefor, if the petition is the first one filed by the defendant attacking the conviction pursuant to this rule, the court shall as of course, unless defendant affirmatively states an intention to proceed pro se, refer the matter to the Office of the Public Defender if the defendant's conviction was for an indictable offense, or assign counsel in accordance with R. 3:4-2 if the defendant's conviction was for a non-indictable offense.
(b) Assignment of Counsel on Cause Shown. Upon any second or subsequent petition filed pursuant to this Rule attacking the same conviction, the matter shall be referred to the Office of the Public Defender only upon application therefor and showing of good cause.
(c) Transcript. After assignment of counsel, or if the indigent defendant proceeds without counsel, the court shall grant an application for the transcript of testimony of any proceeding shown to be necessary in establishing the grounds of relief asserted.
(d) Substitution; Withdrawal of Assigned Counsel. Absent a showing of good cause, the court will not substitute new assigned counsel at the request of defendant while assigned counsel is serving. Assigned counsel may not seek to withdraw on the ground of lack of merit of the petition. Counsel should advance any grounds insisted upon by defendant notwithstanding that counsel deems them without merit.

3:22-5. Bar of Ground Expressly Adjudicated

A prior adjudication upon the merits of any ground for relief is conclusive whether made in the proceedings resulting in the conviction or in any post-conviction proceeding brought pursuant to this rule or prior to the adoption thereof, or in any appeal taken from suchproceedings.

3:22-4. Bar of Grounds Not Raised in Prior Proceedings; Exceptions

Any ground for relief not raised in a prior proceeding under this rule, or in the proceedings resulting in the conviction, or in a post-conviction proceeding brought and decided prior to the adoption of this rule, or in any appeal taken in any such proceedings is barred from assertion in a proceeding under this rule unless the court on motion or at the hearing finds (a) that the ground for relief not previously asserted could not reasonably have been raised in any prior proceeding; or (b) that enforcement of the bar would result in fundamental injustice; or (c) that denial of relief would be contrary to the Constitution of the United States or the State of New Jersey.

3:22-3. Exclusiveness of Remedy; Not Substitute for Appeal or Motion

Except as otherwise required by the Constitution of New Jersey, a petition pursuant to this rule is the exclusive means of challenging a judgment rendered upon conviction of a crime. It is not, however, a substitute for appeal from conviction or for motion incident to the proceedings in the trial court, and may not be filed while such appellate review or motion is available.

3:22-2. Grounds

A petition for post-conviction relief is cognizable if based upon any of the following grounds:
(a) Substantial denial in the conviction proceedings of defendant's rights under the Constitution of the United States or the Constitution or laws of the State of New Jersey;
(b) Lack of jurisdiction of the court to impose the judgment rendered upon defendant's conviction;
(c) Imposition of sentence in excess of or otherwise not in accordance with the sentence authorized by law.
(d) Any ground heretofore available as a basis for collateral attack upon a conviction by habeas corpus or any other common-law or statutory remedy.

3:22-1. Petition for Relief

Any person convicted of a crime may, pursuant to this rule, file with the criminal division manager's office of the county in which the conviction took place a petition for post-conviction relief captioned in the action in which the conviction was entered.

3:21-10. Reduction or Change of Sentence

(a) Time. Except as provided in paragraph (b) hereof, a motion to reduce or change a sentence shall be filed not later than 60 days after the date of the judgment of conviction. The court may reduce or change a sentence, either on motion or on its own initiative, by order entered within 75 days from the date of the judgment of conviction and not thereafter.
(b) Exceptions. A motion may be filed and an order may be entered at any time (1) changing a custodial sentence to permit entry of the defendant into a custodial or non-custodial treatment or rehabilitation program for drug or alcohol abuse, or (2) amending a custodial sentence to permit the release of a defendant because of illness or infirmity of the defendant or (3) changing a sentence for good cause shown upon the joint application of the defendant and prosecuting attorney, or (4) changing a sentence as authorized by the Code of Criminal Justice, or (5) changing a custodial sentence to permit entry into the Intensive Supervision Program, or (6) changing or reducing a sentence when a prior conviction has been reversed on appeal or vacated by collateral attack.
(c) Procedure. A motion filed pursuant to paragraph (b) hereof shall be accompanied by supporting affidavits and such other documents and papers as set forth the basis for the relief sought. A hearing need not be conducted on a motion filed under paragraph (b) hereof unless the court, after review of the material submitted with the motion papers, concludes that a hearing is required in the interest of justice. All changes of sentence shall be made in open court upon notice to the defendant and the prosecutor. An appropriate order setting forth the revisedsentence and specifying the change made and the reasons therefor shall be entered on the record.
(d) Consideration During Appeal. Notwithstanding R. 2:9-1(a), the trial court may reconsider a sentence pursuant to this Rule during the pendency of an appeal upon notice to the Appellate Division.
(e) Intensive Supervision. Motions for change of custodial sentence and entry into the Intensive Supervision Program, as provided for in paragraph (b) of this rule, shall be addressed entirely to the sound discretion of the three-judge panel assigned to hear them. Because of the nature of the program, there shall be no administrative or judicial review at the several levels of eligibility established under the program. No further appellate review of the panel's substantive decision shall be afforded. The three-judge panel shall have the authority to resentence offenders, in accordance with applicable statutes, in the event they fail to perform satisfactorily following entry into the program.

3:21-9. Arrest of Judgment

The court on a defendant's motion shall arrest judgment if the indictment or accusation does not charge an offense or if the charge is based on an invalid or unconstitutional statute or regulation promulgated pursuant to a statute or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 10 days after verdict of guilt or the entry of a plea of guilty or non vult, or within such further time as the court fixes during such 10-day period.

3:21-8. Credit for Confinement Pending Sentence

The defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence.

3:21-7. Probation and Suspended Sentence

After conviction, unless otherwise provided by law, the court may suspend the imposition of a sentence or the defendant may be placed on probation.
(a) Conditions. The order shall require the defendant to comply with standard conditions adopted by the court and filed by counsel with the criminal division manager as designee of the deputy clerk of the Superior Court (except as otherwise ordered), as well as such special conditions, including a term of imprisonment pursuant to N.J.S.A. 2C:45-1c, as the court imposes. As a condition of probation the court may impose a term of community-related service to be performed by the defendant under such terms and conditions as the court may determine. A copy of the order, together with the standard and special conditions, shall be furnished to the defendant, and read and explained to the defendant by the probation officer, whereupon the defendant and the probation officer shall sign a joint statement, to be filed with the criminal division manager as designee of the deputy clerk of the Superior Court, as to the officer's compliance with such reading and explanation requirement. If the defendant refuses to sign such statement, the defendant shall be resentenced.
(b) Detention. The court may, pursuant to N.J.S.A. 2C:45-3a(3), upon a showing of probable cause that the defendant has committed another offense, detain without bail pendingdetermination of the charge, a defendant who was sentenced to probation or whose sentence was suspended.
(c) Revocation. At any time before termination of the period of suspension or probation, the court may revoke a suspension or probation pursuant to N.J.S.A. 2C:45-3.

3:21-6. Conviction of a Corporation

If a corporation is convicted of an offense the court shall give judgment thereon and shall cause such judgment to be enforced in the same manner as a judgment in a civil action.

3:21-5. Judgment

(a) Capital Convictions. On the imposition of a sentence of death, the court shall immediately enter the judgment of conviction and the Criminal Division Manager shall transmit it within two days to the Clerk of the Supreme Court, all parties, and their counsel. If a defendant sentenced to death is later sentenced for non-capital offenses, the court shall prepare an amended judgment containing all convictions. A copy of such amended judgment shall be provided to the Clerk of the Supreme Court.

(b) Non-Captial Convictions. The judgment shall be signed by the judge and entered by the clerk. A judgment of conviction shall set forth the plea, the verdict or findings, the adjudication and sentence, a statement of the reasons for such sentence, and a statement of credits received pursuant to R. 3:21-8. If the defendant is found not guilty or for any other reason is entitled to be discharged judgment shall be entered accordingly. The Criminal Division Manager shall forward a copy of the judgment forthwith to all parties and their counsel.

Note: Source-R.R. 3:7-10(e); amended August 27, 1974 to be effective September 9, 1974; amended July 29, 1977 to be effective September 6, 1977; amended November 1, 1985 effective January 2, 1986; new paragraph (a) added, and former text amended, caption added, and designated as paragraph (b) July 12, 2002 to be effective September 3, 2002.

3:21-4A. Sentence, Murder Under N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a)(2)

Where the defendant has been convicted of, or has entered a plea of guilty to, N.J.S.A. 2C:11-3(a)(1) or N.J.S.A. 2C:11-3(a)(2) and where the provisions of N.J.S.A. 2C:11-3(c) apply, a separate sentencing hearing shall be conducted pursuant to N.J.S.A. 2C:11-3(c) immediately thereafter, except for good cause shown. At the sentencing hearing the jury, or the court if there is no jury, shall complete a special verdict form.

3:21-4. Sentence

(a) Imposition of Sentence; Bail. Sentence shall be imposed without unreasonable delay. Pending sentence the court may commit the defendant or continue or alter the bail.

(b) Presence of Defendant; Statement. Sentence shall not be imposed unless the defendant is present or has filed a written waiver of the right to be present. Before imposing sentence the court shall address the defendant personally and ask the defendant if he or she wishes to make a statement in his or her own behalf and to present any information in mitigation of punishment. The defendant may answer personally or by his or her attorney.

(c) Sentence to Probation. The court, at time of sentence, shall inform defendants sentenced to probation what penalties might be imposed on revocation should they not adhere to the conditions of their probation.

(d) Extradition. Nothing herein contained shall be construed as affecting the provisions of N.J.S. 2A:160-5 (relating to extradition) or the power of the court to resentence a defendant after reversal of the judgment by reason of error in the sentence.

(e) Extended or Enhanced Term of Imprisonment; Sentence Pursuant to N.J.S.A. 2C:35-8. A motion pursuant to N.J.S.A. 2C:44-3 or N.J.S.A. 2C:43-6f for the imposition of an extended term of imprisonment, or a motion for enhanced sentence pursuant to N.J.S.A. 2C:35-8, shall be filed with the court by the prosecutor within 14 days of the entry of the defendant's guilty plea or the return of the verdict. Where the defendant is pleading guilty pursuant to a negotiated disposition, the prosecutor shall make the motion at or prior to the plea. If the negotiated disposition includes the recommendation of an extended term, the prosecutor’s oral notice and the recordation of the extended term exposure in the plea form completed by defendant and reviewed on the record shall serve as the State’s motion. For good cause shown the court may extend the time for filing the motion. The sentence shall include a determination as to whether the defendant was convicted and sentenced to an extended term of imprisonment as provided in N.J.S.A. 2C:43-7, 2C:44-3 and 2C:44-6e, N.J.S.A. 2C:43-6f or whether the defendant was being sentenced pursuant to N.J.S.A. 2C:35-8, and the commitment or order of sentence which directs the defendant's confinement shall so specify.

(f) Sentence Pursuant to N.J.S.A. 2C:43-7.1, 2C:43-7.2, or 2C:44-5.1. A notice to impose sentence pursuant to N.J.S.A. 2C:43-7.1, N.J.S.A. 2C:43-7.2, or 2C:44-5.1 shall be filed with the court and served upon the defendant by the prosecutor within 14 days of the entry of the defendant's guilty plea or return of the verdict. Where the defendant is pleading guilty pursuant to a negotiated disposition, the prosecutor shall file and serve the notice at or prior to the plea. If the negotiated disposition includes the recommendation of an extended term, the prosecutor’s oral notice and the recordation of the extended term exposure in the plea form completed by defendant and reviewed on the record shall serve as the State’s notice. For good cause shown the court may extend the time for filing the notice. The sentence shall include a determination as to whether the defendant was convicted and sentenced pursuant to N.J.S.A. 2C:43-7.1, N.J.S.A. 2C:43-7.2, or 2C:44-5.1 and the judgment and commitment shall so specify.

(g) Reasons for Sentence. At the time sentence is imposed the judge shall state reasons for imposing such sentence including findings pursuant to the criteria for withholding or imposing imprisonment or fines under N.J.S.A. 2C:44-1 to 2C:44-3 and the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence.

(h) Notification of Right to Appeal. After imposing sentence, whether following the defendant's plea of guilty or a finding of guilty after trial, the court shall advise the defendant of the right to appeal and, if the defendant is indigent, of the right to appeal as an indigent.

(i) Sentence Imposed Pursuant to N.J.S.A. 2C:44-1(f)(2). In the event the court imposes sentence pursuant to N.J.S.A. 2C:44-1(f)(2), such sentence shall not become final until 10 days after the date sentence was pronounced.

(j) Statement of Estimated Real Time to Be Served. If defendant is sentenced to prison or jail, at the time sentence is imposed the judge shall state the approximate period of time defendant will actually serve in custody according to the then current State Parole Board "Parole Eligibility Tables." The statement should also consider the impact of jail credits, and should indicate that it is made for the benefit of the public, including those in attendance at the proceedings, and cannot be relied on by the defendant for purposes of proceedings before the Parole Board or any direct or collateral appeal.

3:21-3. Diagnostic Center Report

Whenever the defendant is convicted of an offense enumerated in N.J.S.A. 2c:47-1 et seq., the court, before imposing sentence or making disposition of the offender under the provisions of said chapter, shall furnish to the prosecuter, defendant, or defendant's attorney a copy of the report of the Diagnostic Center, shall advise the defendant of the opportunity to be hear thereon, and shall afford the defendant such hearing. The report of the Diagnostic Center shall be confidential unless otherwise provided by rule, statute or court order.

3:21-2. Presentence Procedure

(a) Investigation. Before the imposition of a sentence or the granting of probation court support staff shall make a presentence investigation in accordance with N.J.S.A. 2C:44-6 and report to the court. The report shall contain all presentence material having any bearing whatever on the sentence and shall be furnished to the defendant and the prosecutor. On counts on which the death penalty is to be imposed, a presentence report shall not be prepared.

(b) Examination. After the presentence investigation and before imposing sentence, the court may order, pursuant to N.J.S.A. 2C:44-6c, a physical or mental examination of the defendant provided that the defendant may not be committed to an institution for the purpose of that examination. The examination report shall be furnished to the defendant and the prosecuting attorney.

(c) Transmittal of Reports. If a custodial sentence is imposed, court staff shall, within fifteen days thereafter, transmit a copy of the presentence report and the examination report, if any, to the person in charge of the institution to which the defendant has been committed.

3:21-1. Withdrawal of Plea

A motion to withdraw a plea of guilty or non vult shall be made before sentencing, but the court may permit it to be made thereafter to correct a manifest injustice.

3:20-2. Time for Making Motion

A motion for a new trial based on the ground of newly-discovered evidence may be made at any time, but if an appeal is pending, the court may grant the motion only on remand of the case. A motion for a new trial based on a claim that the defendant did not waive his or her appearance for trial shall be made prior to sentencing. A motion for a new trial based on any other ground shall be made within 10 days after the verdict or finding of guilty, or within such further time as the court fixes during the 10-day period.

3:20-1. Trial by Court or Jury

The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. If trial was by the judge without a jury, the judge may, on defendant's motion for a new trial, vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

3:19-2. Acquittal by Reason of Insanity

If a defendant interposes the defense of insanity and is acquitted after trial on that ground, the verdict and judgment shall so state.

The procedure for disposition of the defendant shall be as provided by N.J.S.A. 2C:4-8 and 2C:4-9 and by R. 4:74-7, except that in the case of defendants acquitted of murder by reason of insanity all hearings pursuant to R. 4:74-7(e) shall be in open court unless good cause is shown for a hearing in camera.

3:19-1. Several Defendants or Counts; Written Verdict Sheets

(a) Several Defendants or Counts. If there are 2 or more counts of an indictment or 2 or more defendants tried together, the jury may return a verdict or verdicts with respect to a defendant or defendants as to whom it has agreed, specifying the counts on which it has agreed; the defendant or defendants may be tried again on the count or counts as to which it has not agreed.
(b) Written Verdict Sheets. In the discretion of the court, a written verdict sheet may be submitted to the jury in conjunction with a general verdict to facilitate the determination of the grade of the offense under the Code of Criminal Justice or otherwise simplify the determination of a verdict when multiple charges are submitted to the jury. The verdict sheet shall be marked as a court exhibit and retained by the court pursuant to Rule 1:2-3.

3:18-2. Motion After Discharge of Jury

If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made, even if not earlier made pursuant to R. 3:18-1 or it may be renewed within 10 days after the jury is discharged or within such further time as the court fixes during the 10-day period. The court on such motion may set aside a verdict of guilty and order the entry of a judgment of acquittal and may so order if no verdict has been returned.

3:18-1. Motion Before Submission to Jury

At the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction. A defendant may offer evidence after denial of a motion for judgment of acquittal made at the close of the State's case without having reserved the right.

3:17. Electronic Recordation

(a) Unless one of the exceptions set forth in paragraph (b) are present, all custodial interrogations conducted in a place of detention must be electronically recorded when the person being interrogated is charged with murder, kidnapping, aggravated manslaughter, manslaughter, robbery, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, second degree aggravated assault, aggravated arson, burglary, violations of Chapter 35 of Title 2C that constitute first or second degree crimes, any crime involving the possession or use of a firearm, or conspiracies or attempts to commit such crimes. For purposes of this rule, a "place of detention" means a building or a police station or barracks that is a place of operation for a municipal or state police department, county prosecutor, sheriff or other law enforcement agency, that is owned or operated by a law enforcement agency at which persons are or may be detained in connection with criminal charges against those persons. Place of detention shall also include a county jail, county workhouse, county penitentiary, state prison or institution of involuntary confinement where a custodial interrogation may occur.

(b) Electronic recordation pursuant to paragraph (a) must occur unless: (i) a statement made during a custodial interrogation is not recorded because electronic recording of the interrogation is not feasible, (ii) a spontaneous statement is made outside the course of an interrogation, (iii) a statement is made in response to questioning that is routinely asked during the processing of the arrest of the suspect, (iv) a statement is made during a custodial interrogation by a suspect who indicated, prior to making the statement, that he/she would participate in the interrogation only if it were not recorded; provided however, that the agreement to participate under that condition is itself recorded, (v) a statement is made during a custodial interrogation that is conducted out of state, (vi) a statement is given at a time when the accused is not a suspect for the crime to which that statement relates while the accused is being interrogated for a different crime that does not require recordation, (vii) the interrogation during which the statement is given occurs at a time when the interrogators have no knowledge that a crime for which recording is required has been committed. The State shall bear the burden of proving, by a preponderance of the evidence, that one of the exceptions is applicable.

(c) If the State intends to rely on any of the exceptions set forth in paragraph (b) in offering a defendant's unrecorded statement into evidence, the State shall furnish a notice of intent to rely on the unrecorded statement, stating the specific place and time at which the defendant made the statement and the specific exception or exceptions upon which the State intends to rely. The prosecutor shall, on written demand, furnish the defendant or defendant's attorney with the names and addresses of the witnesses upon whom the State intends to rely to establish one of the exceptions set forth in paragraph (b). The trial court shall then hold a hearing to determine whether one of the exceptions apply.

(d) The failure to electronically record a defendant's custodial interrogation in a place of detention shall be a factor for consideration by the trial court in determining the admissibility of a statement, and by the jury in determining whether the statement was made, and if so, what weight, if any, to give to the statement.

(e) In the absence of an electronic recordation required under paragraph (a), the court shall, upon request of the defendant, provide the jury with a cautionary instruction.

3:16. PRESENCE OF THE DEFENDANT

(a) Pretrial. The defendant must be present for every scheduled event unless excused by the court for good cause shown.

(b) At Trial or Post-conviction Proceedings. The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, or (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence. A corporation shall appear by its attorney for all purposes. The defendant's presence is not required at a reduction of sentence under R. 3:21-10 or, except as provided in R. 3:22-10, at a hearing on a petition for post conviction relief.

3:15-3. Trial of Criminal Offenses and Lesser, Related Infractions

(a) Joinder of Criminal Offense and Lesser Related Infraction.
(1) Except as provided in paragraph (b), the court shall join any pending non-indictable complaint for trial with a criminal offense based on the same conduct or arising from the same episode.
(2) Regardless of whether a jury sits as the finder of facts with respect to the criminal offense, and unless the complaint charges a disorderly persons offense or a petty disorderly persons offense that must be submitted to the jury in accordance with the provisions of N.J.S.A.2C:1-8(e), the Superior Court judge shall sit as a municipal court judge on the complaint and shall render the verdict with respect to the complaint on the proofs adduced in the course of trial.
(3) If evidence is held to be admissible with respect to the trial of the complaint but inadmissible with respect to the trial of the criminal offense, the court shall hear that evidence outside of the jury's presence and may, in its discretion, postpone such hearing until the jury has retired to deliberate. The court shall not render its verdict on the complaint until the jury has rendered its verdict or until the jury has been dismissed.
(b) Relief From Joinder. If for any reason it appears that a defendant or the State is prejudiced by the joinder required by paragraph (a), the court may decline to join or may grant other appropriate relief. A defendant's request to avoid joinder shall constitute a waiver of any claim against twice being placed in jeopardy that would not have arisen had the defendant's request been denied.
(c) Consequence of Failure to Join. In no event shall failure to join as required in paragraph (a) be deemed to constitute grounds for barring a subsequent prosecution of the complaint except as required by statute or by the Federal or State Constitutions.

3:15-2. Relief From Prejudicial Joinder

(a) Motion by State Before Trial. If two or more defendants are to be jointly tried and the prosecuting attorney intends to introduce at trial a statement, confession or admission of one defendant involving any other defendant, the prosecuting attorney shall move before trial on notice to all defendants for a determination by the court as to whether such portion of the statement, confession, or admission involving such other defendant can be effectively deleted therefrom. The court shall direct the specific deletions to be made, or, if it finds that effective deletions cannot practically be made, it shall order separate trials of the defendants. Upon failure of the prosecuting attorney to so move before trial, the court may refuse to admit such statement, confession or admission into evidence at trial, or take such other action as the interest of justice requires.
(b) Motion by Defendant and State. If for any other reason it appears that a defendant or the State is prejudiced by a permissible or mandatory joinder of offenses or of defendants in an indictment or accusation the court may order an election or separate trials of counts, grant a severance of defendants, or direct other appropriate relief.
(c) Time. A motion for separate trial of counts of an indictment or accusation must be made pursuant to R. 3:10-2, unless the court, for good cause shown, enlarges the time.

3:15-1. Trial of Indictments or Accusations Together

(a) Permissible Joinder. The court may order 2 or more indictments or accusations tried together if the offenses and the defendants, if there are 2 or more, could have been joined in a single indictment or accusation. The procedure shall be the same as if the prosecution were under such single indictment or accusation.
(b) Mandatory Joinder. Except as provided by R. 3:15-2(b), a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court.

3:14-4. Order for Change of Venue; Costs

If a change of venue is ordered, the criminal division manager's office in which the indictment or accusation is pending shall transmit to the criminal division manager's office to which the matter is transferred all papers filed therein or duplicates thereof, and the prosecution shall continue in that county. The costs of trial shall be certified to the Assignment Judge of the county in which the indictment was found or the accusation was filed.

3:14-3. Foreign Juries; Order and Selection

If a foreign jury is ordered, the order shall specify the number of jurors to be returned and a venire directed to the sheriff of the county from which such jury shall be taken, which shall bereturnable to the court in the county in which the matter is to be tried. The jurors shall be selected in the same manner as the general panel of jurors is selected in the county from which they are taken.

3:14-2. Motion for Change of Venue or Foreign Jury

A motion for change of venue may be made only by a defendant. A motion for trial by a foreign jury may be made by any party. Such motions shall be made to the judge assigned to try the case or to the Assignment Judge of the county in which the indictment was found or the accusation filed on notice to the other party or parties on such proofs as the court directs and shall be granted if the court finds that a fair and impartial trial cannot otherwise be had.

3:14-1. Venue

An offense shall be prosecuted in the county 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.
(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.
(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 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.
(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 when the prosecution is begun.
(k) 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).

3:13-4. Additional Discovery in Capital Cases

(a) In addition to any discovery provided pursuant to R. 3:13-3, the prosecuting attorney shall provide the defendant with the indictment containing the aggravating factors that the State intends to prove at the penalty phase together with all discovery bearing on these factors. The prosecuting attorney shall provide the defendant with any discovery in the possession of the prosecution that is relevant to the existence of any mitigating factors. Such discovery shall be transmitted at the arraignment/status conference unless the time to do so is enlarged for good cause. If the aggravating factors are not contained in the original indictment, but are contained in a supplemental indictment, the prosecuting attorney shall provide the defendant with any discovery bearing on these factors immediately upon return of the supplemental indictment, unless the time to do so is enlarged for good cause shown.

(b) The defendant shall provide the prosecuting attorney with an itemization setting forth the mitigating factors the defendant intends to rely on at the sentencing hearing together with any discovery in the possession of the defendant in support of those factors. Such discovery shall be transmitted to the prosecuting attorney forthwith upon a verdict of guilty, or plea of guilty, to a crime punishable by death.

(c) The duty to disclose the discovery relevant to the existence of aggravating and mitigating factors shall be a continuing one.

3:13-3. Discovery and Inspection

(a) Pre-indictment Discovery. Where the prosecutor has made a pre-indictment plea offer, the prosecutor shall upon request permit defense counsel to inspect and copy or photograph any relevant material which would be discoverable following an indictment pursuant to section (b) or (c).

(b) Post Indictment Discovery. A copy of the prosecutor's discovery shall be delivered to the criminal division manager's office, or shall be available at the prosecutor's office, within 14 days of the return or unsealing of the indictment. Defense counsel shall obtain a copy of the discovery from the criminal division manager's office, or the prosecutor's office, no later than 28 days after the return or unsealing of the indictment. A defendant who does not seek discovery from the State shall so notify the criminal division manager's office and the prosecutor, and the defendant need not provide discovery to the State pursuant to sections (d) or (g), except as required by Rule 3:12-1 or otherwise required by law. Defense counsel will forward a copy of discovery materials to the prosecuting attorney no later than 7 days before the arraignment/status conference.

(c) Discovery by the Defendant. The prosecutor shall permit defendant to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b):

(1) books, tangible objects, papers or documents obtained from or belonging to the defendant;

(2) records of statements or confessions, signed or unsigned, by the defendant or copies thereof, and a summary of any admissions or declarations against penal interest made by the defendant that are known to the prosecution but not recorded;

(3) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of the prosecutor;

(4) reports or records of prior convictions of the defendant;

(5) books, papers, documents, or copies thereof, or tangible objects, buildings or places which are within the possession, custody or control of the prosecutor;

(6) names, addresses, and birthdates of any persons whom the prosecutor knows to have relevant evidence or information including a designation by the prosecutor as to which of those persons may be called as witnesses;

(7) record of statements, signed or unsigned, by such persons or by co-defendants which are within the possession, custody or control of the prosecutor and any relevant record of prior conviction of such persons;

(8) police reports which are within the possession, custody, or control of the prosecutor;

(9) names and addresses of each person whom the prosecutor expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Except in the penalty phase of a capital case if this information is requested and not furnished 30 days in advance of trial, the expert witness may, upon application by the defendant, be barred from testifying at trial.

(d) Discovery by the State. A defendant shall permit the State to inspect and copy or photograph the following relevant material if not given as part of the discovery package under section (b):

(1) results or reports of physical or mental examinations and of scientific tests or experiments made in connection with the matter or copies thereof, which are within the possession, custody or control of defense counsel;

(2) any relevant books, papers, documents or tangible objects, buildings or places or copies thereof, which are within the possession, custody or control of defense counsel;

(3) the names, addresses, and birthdates of those persons known to defendant who may be called as witnesses at trial and their written statements, if any, including memoranda reporting or summarizing their oral statements;

(4) written statements, if any, including any memoranda reporting or summarizing the oral statements, made by any witnesses whom the State may call as a witness at trial;

(5) names and address of each person whom the defense expects to call to trial as an expert witness, the expert's qualifications, the subject matter on which the expert is expected to testify, and a copy of the report, if any, of such expert witness, or if no report is prepared, a statement of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Except in the penalty phase of a capital case if this information is requested and not furnished 30 days in advance of trial the expert may, upon application by the prosecutor, be barred from testifying at trial.

(e) Documents Not Subject to Discovery. This rule does not require discovery of a party's work product consisting of internal reports, memoranda or documents made by that party or the party's attorney or agents, in connection with the investigation, prosecution or defense of the matter nor does it require discovery by the State of records or statements, signed or unsigned, of defendant made to defendant's attorney or agents.

(f) Protective Orders.

(1) Grounds. Upon motion and for good cause shown the court may at any time order that the discovery or inspection sought pursuant to this rule be denied, restricted, or deferred or make such other order as is appropriate. In determining the motion, the court may consider the following: protection of witnesses and others from physical harm, threats of harm, bribes, economic reprisals and other intimidation; maintenance of such secrecy regarding informants as is required for effective investigation of criminal activity; protection of confidential relationships and privileges recognized by law; any other relevant considerations.

(2) Procedure. The court may permit the showing of good cause to be made, in whole or in part, in the form of a written statement to be inspected by the court alone, and if the court thereafter enters a protective order, the entire text of the statement shall be sealed and preserved in the records of the court, to be made available only to the appellate court in the event of an appeal.

(g) Continuing Duty to Disclose; Failure to Comply. If subsequent to the compliance with a request by the prosecuting attorney or defense counsel or with an order issued pursuant to the within rule and prior to or during trial a party discovers additional material or witnesses previously requested or ordered subject to discovery or inspection, that party shall promptly notify the other party or that party's attorney of the existence thereof. If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate.

3:13-2. Depositions

(a) When Authorized. If it appears to the judge of the court in which a complaint, indictment or accusation is pending that a material witness is likely to be unable to testify at trial because of death or physical or mental incapacity, the court, upon motion and notice to the parties, and after a showing that such action is necessary to prevent manifest injustice, may order that a deposition of the testimony of such witness be taken and that any designated books, papers, documents or tangible objects, not privileged, be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, on written motion of the witness and upon notice to the parties, the court may direct that the witness's deposition be taken, and after the deposition has been subscribed the court may discharge the witness.
(b) Procedure. The deposition shall be videotaped unless the court orders otherwise. The deposition shall be taken before the judge at such location as will be convenient to all parties. If, because the deposition is to be taken outside of the State, the judge is unable to preside, the deposition shall be taken before a person designated by the judge to perform that function. All parties and counsel shall have a right to be present at the deposition. Examination, cross-examination and determination of admissibility of evidence, shall proceed in the same manner as at trial. Videotaping shall be done by a person independent of both prosecution and defense and chosen by the judge.
(c) Use. Depositions taken pursuant to this rule may be used at trial in lieu of live testimony of the witness in open court if the witness is unable to testify because of death or physical or mental incapacity. In the case of a witness deposed to allow discharge from commitment for failure to give bail as provided in paragraph (a) above, the deposition may be used, in addition, if the court finds that the party offering the deposition has been unable to procure the attendance of the witness by subpoena or otherwise. The deposition shall be admissible insofar as allowable under the Rules of Evidence applied as though the witness were then present and testifying. The deposition shall not be used unless the court finds that the circumstances surrounding its taking allowed full preparation and cross-examination by all parties. A record of the videotaped testimony, which shall be part of the official record of the court proceedings, shall be made in the same manner as if the witness were present and testifying, but, in addition, the videotape shall be retained by the court. If the judge finds that use of the videotaped testimony would be unfairly prejudicial to a party, the judge may order that only the audiotape of the testimony be used or that the transcript of the witness's testimony be read to the jury if either of these limitations would prevent such prejudice.
(d) Jury Instruction. In any case where a deposition is used in any form, the court shall instruct the jury that this procedure is employed for the convenience of the witness and that the jury should draw no inference from its use.

3:13-1. [Deleted]

3:12A. [DELETED]

3:12-2. Notice of Alibi; Failure to Furnish

(a) Alibi. If a defendant intends to rely in any way on an alibi, within 10 days after a written demand by the prosecutor the defendant shall furnish a signed alibi, stating the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi. Within 10 days after receipt of such alibi, the prosecutor shall, on written demand, furnish the defendant or defendant's attorney with the names and addresses of the witnesses upon whom the State intends to rely to establish defendant's presence at the scene of the alleged offense. The trial court may order such amendment or amplification as the interest of justice requires.

(b) Failure to Furnish. If the information required in paragraph (a) is not furnished, the court may refuse to allow the party in default to present witnesses at trial as to defendant's absence from or presence at the scene of the alleged offense, or make such other order or grantsuch adjournment, or delay during trial, as the interest of justice requires.

3:12-1. Notice Under Specific Criminal Code Provisions

A defendant shall serve written notice on the prosecutor if the defendant intends to rely on any of the following sections of the Code of Criminal Justice: Ignorance or Mistake, 2C:2-4(c); Accomplice: Renunciation Terminating Complicity, 2C:2-6(e)(3); Intoxication, 2C:2-8(d); Duress, 2C:2-9(a); Entrapment, 2C:2-12(b); General Principles of Justification, 2C:3-1 to 2C:3-11; Insanity, 2C:4-1; Lack of Requisite State of Mind, 2C:4-2; Criminal Attempt (renunciation of criminal purpose), 2C:5-1(d); Conspiracy (renunciation of criminal purpose), 2C:5-2(e); Murder (affirmative defense, felony murder), 2C:11-3(a)(3); Criminal Restraint, 2C:13-2(b); Theft by Extortion, 2C:20-5; Perjury (retraction), 2C:28-1(d); False Swearing (retraction), 2C:28-2(b); Controlled Dangerous Substances Near or On School Property, 2C:35-7; and Distributing, Dispensing or Possessing Controlled Substances Within 500 Feet of Public Housing Facilities, Parks or Buildings, 2C:35-7.1.

No later than seven days before the arraignment/status conference the defendant shall serve on the prosecutor a notice of intention to claim any of the defenses listed herein; and if the defendant requests or has received discovery pursuant to R. 3:13-3(c), the defendant shall, pursuant to R. 3:13-3(d), furnish the prosecutor with discovery pertaining to such defenses at the time the notice is served. The prosecutor shall, within 14 days after receipt of such discovery, comply with R. 3:13-3(c) and (g) with respect to any defense for which the prosecutor has received notice.

For good cause shown the court may extend the time of service of any of the foregoing, or make such other orders as the interest of justice requires. If a party fails to comply with this Rule, the court may take such action as the interest of justice requires. The action taken may include refusing to allow the party in default to present witnesses in support or in opposition of that defense at the trial or to allow the granting of an adjournment or delay during trial as the interest of justice demands.

3:11. [RESERVED]

R. 3:11-1 and R. 3:11-2 revised and redesignated as R. 3:12-2(a) and (b) July 13, 1994 to be effective January 1, 1995.

3:10-7. Effect of Determination of Motion

Except as provided in R. 3:9-3(f), if a motion is determined adversely to the defendant, the defendant shall be permitted to plead if the defendant has not previously pleaded but a plea previously entered shall stand. If an objection or defense specified in R. 3:10-2 is sustained and is not otherwise remediable the court shall order the indictment or accusation dismissed. If the court grants a motion to dismiss an indictment or accusation, it may also order that the defendant be held in custody or that bail be continued for a specified time pending the filing of a new indictment or accusation.

3:10-6. [Reserved]

Note: Source-R.R. 3:5-5(b)(4); former R. 3:10-6 amended and redesignated R. 3:10-2(b) July 13, 1994 to be effective January 1, 1995.

3:10-5. [Reserved]

Note: Source-R.R. 3:5-5(b)(2) (third sentence), 3:5-5(b)(3); former R. 3:10-5 amended and redesignated R. 3:10-2(a) July 13, 1994 to be effective January 1, 1995.

3:10-4. [Reserved]

Note: Source-R.R. 3:5-5(b)(2) (fifth sentence); former R. 3:10-4 redesignated R. 3:10-2(e) July 13, 1994 to be effective January 1, 1995.

3:10-3. [Reserved]

Note: Source-R.R. 3:5-5(b)(2) (first sentence); former R. 3:10-3 redesignated R. 3:10-2(d)July 13, 1994 to be effective January 1, 1995.

3:10-2. Time and Manner of Making Motion; Hearing on Motion

(a) Time and Manner of Making Motion. Unless otherwise required by law, pre-indictment motions shall be heard by the judge to whom the case is assigned. If the case has not been assigned to a judge pre-indictment motions shall be made to the Criminal Presiding Judge or designee, except as otherwise provided by law. Unless otherwise required by law, or ordered by the Criminal Presiding Judge, post-indictment motions shall be made to the judge to whom the indictment has been assigned. At the arraignment/status conference counsel shall advise the court of their intention to make motions. The dates for filing, briefing and for the hearing of such motions shall be set by the court at the arraignment/status conference. Unless otherwise ordered by the court, motions and status conferences shall be scheduled on the same day. The court may for good cause shown and in the interest of justice permit additional motions to be made thereafter. A motion shall include all defenses and objections then available to the defendant.

(b) Hearing on Motion. A motion made before trial shall be determined before the trial memorandum is prepared and the trial date fixed, unless the court, for good cause, orders it deferred for determination at or after trial.
(c) Defenses and Objections Which Must Be Raised Before Trial. The defense of double jeopardy and all other defenses and objections based on defects in the institution of the prosecution or in the indictment or accusation, except as otherwise provided by R. 3:10-2(d) (defenses which may be raised only before or after trial) and R. 3:10-2(e) (lack of jurisdiction), must be raised by motion before trial. Failure to so present any such defense constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver.
(d) Defenses and Objections Which May Only Be Raised Before or After Trial. The defense that the indictment or accusation fails to charge an offense and the defense that the charge is based on a statute or regulation promulgated pursuant to statute which is unconstitutional or invalid in whole or in part may only be raised by motion either before trial or within 10 days after a verdict of guilty or within such further time as the court may fix during such 10-day period, or on appeal. Such defenses shall not be considered during trial.
(e) Lack of Jurisdiction. The court shall notice the defense of lack of jurisdiction in the court at any time during the pendency of the proceeding except during trial.

3:9-3. Plea Discussions; Agreements; Withdrawals

(a) Plea Discussions Generally. The prosecutor and defense attorney may engage in discussions relating to pleas and sentences and shall engage in discussions about such matters as will promote a fair and expeditious disposition of the case, but except as hereinafter authorized the judge shall take no part in such discussions.
(b) Entry of Plea. When the prosecutor and defense counsel reach an agreement concerning the offense or offenses to which a defendant will plead on condition that other charges pending against the defendant will be dismissed or an agreement concerning the sentence that the prosecutor will recommend, or when pursuant to paragraph (c) the defendant pleads guilty based on indications by the court of the maximum sentence to be imposed, such agreement and such indications shall be placed on the record in open court at the time the plea is entered.
(c) Disclosure to Court. On request of the prosecutor and defense counsel, the court in the presence of both counsel may permit the disclosure to it of the tentative agreement and the reasons therefor in advance of the time for tender of the plea or, if no tentative agreement has been reached, the status of negotiations toward a plea agreement. The court may then indicate to the prosecutor and defense counsel whether it will concur in the tentative agreement or, if no tentative agreement has been reached and with the consent of both counsel, the maximum sentence it would impose in the event the defendant enters a plea of guilty, assuming, however, in both cases that the information in the presentence report at the time of sentence is as has been represented to the court at the time of the disclosure and supports its determination that the interests of justice would be served thereby. If the agreement is reached without such disclosure or if the court agrees conditionally to accept the plea agreement as set forth above, or if the plea is to be based on the court's conditional indication about the sentence, all the terms of the plea, including the court's concurrence or its indication concerning sentence, shall be placed on the record in open court at the time the plea is entered. Nothing in this Rule shall be construed to authorize the court to dismiss or downgrade any charge without the consent of the prosecutor.
(d) Agreements Involving the Right to Appeal. Whenever a plea agreement includes a provision that defendant will not appeal, the court shall advise the defendant that notwithstanding the inclusion of this provision, the defendant has the right to take a timely appeal if the plea agreement is accepted, but that if the defendant does so, the plea agreement may be annulled at the option of the prosecutor, in which event all charges shall be restored to the same status as immediately before the entry of the plea. In the event the defendant files an appeal in a case in which the plea agreement included a provision that the defendant will not appeal, the State must exercise its right to annul the plea agreement no later than seven days prior to the date scheduled for oral argument or submission without argument.
(e) Withdrawal of Plea. If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel or by imposing sentence in accordance with the court's previous indications of sentence, the court may vacate the plea or the defendant shall be permitted to withdraw the plea.
(f) Conditional Pleas. With the approval of the court and the consent of the prosecuting attorney, a defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant shall be afforded the opportunity to withdraw his or her plea. Nothing in this rule shall be construed as limiting the right of appeal provided for in R. 3:5-7(d).
(g) Plea Cut Off. After the pretrial conference has been conducted and a trial date set, the court shall not accept negotiated pleas absent the approval of the Criminal Presiding Judge based on a material change of circumstance, or the need to avoid a protracted trial or a manifest injustice.

3:9-2. Pleas

A defendant may plead only guilty or not guilty to an offense. The court, in its discretion, may refuse to accept a plea of guilty and shall not accept such plea without first questioning the defendant personally, under oath or by affirmation, and determining by inquiry of the defendant and others, in the court's discretion, that there is a factual basis for the plea and that the plea is made voluntarily, not as a result of any threats or of any promises or inducements not disclosed on the record, and with an understanding of the nature of the charge and the consequences of the plea. In addition to its inquiry of the defendant, the court may accept a written stipulation of facts, opinion, or state of mind that the defendant admits to be true, provided the stipulation is signed by the defendant, defense counsel, and the prosecutor. When the defendant is charged with a crime punishable by death, no factual basis shall be required from the defendant before entry of a plea of guilty to a capital offense or to a lesser included offense, provided the court is satisfied from the proofs presented that there is a factual basis for the plea. For good cause shown the court may, in accepting a plea of guilty, order that such plea not be evidential in any civil proceeding. If a plea of guilty is refused, no admission made by the defendant shall be admissible in evidence against the defendant at trial. If a defendant refuses to plead or stands mute, or if the court refuses to accept a plea of guilty, a plea of not guilty shall be entered. Before accepting a plea of guilty, the court shall require the defendant to complete, insofar as applicable, and sign the appropriate form prescribed by the Administrative Director of the Courts, which shall then be filed with the criminal division manager's office.

3:9-1. Prearraignment Conference; Plea Offer; Arraignment/Status Conference; Pretrial Hearings; Pretrial Conference

(a) Prearraignment Conference. After an indictment has been returned, or an indictment sealed pursuant to R. 3:6-8 has been unsealed, a copy of the indictment, together with the discovery for each defendant named therein, shall be either delivered to the criminal division manager's office, or be available at the prosecutor's office, within 14 days of the return or unsealing of the indictment. After the return or unsealing of the indictment the defendant shall be notified in writing by the criminal division manager's office to appear for a prearraignment conference which shall occur within 21 days of indictment. At the prearraignment conference the defendant shall be: informed of the charges; notified in writing of the date, place and time for the arraignment/status conference; and, if the defendant so requests, be allowed to apply for pretrial intervention. The criminal division manager's office shall not otherwise advise the defendant regarding the case. The criminal division manager's office, shall ascertain whether the defendant is represented by counsel and, if not, whether the defendant can afford counsel. If indicated that the defendant cannot afford counsel, the defendant shall be required to fill out the Uniform Defendant Intake Report. If a defendant does not appear for a prearraignment conference, the criminal division manager shall notify the criminal presiding judge who may issue a bench warrant. A defendant's attorney seeking discovery shall obtain a copy of the indictment and discovery from either the criminal division manager's office, or the prosecutor's office, no later than 28 days after the return or unsealing of the indictment. No prearraignment conference shall be required where the defendant has counsel and the criminal division manager's office has established to its satisfaction: (1) that an appearance has been filed under Rule 3:8-1; (2) that discovery, if requested, has been obtained; and (3) that defendant and counsel have obtained a date, place and time for the arraignment/status conference.

(b) Plea Offer. Prior to the arraignment/status conference the prosecutor and the defense attorney shall discuss the case, including any plea offer, and any outstanding or anticipated motions and discovery issues and report thereon at the arraignment/status conference. Any plea offer to be made by the prosecutor shall be in writing and forwarded to the defendant's attorney.

(c) Arraignment/Status Conference; In Open Court. The arraignment/status conference shall be conducted in open court no later than 50 days after indictment. The judge shall advise the defendant of the substance of the charge and confirm that the defendant has reviewed with counsel the indictment and the discovery. The defendant shall enter a plea to the charges. If the plea is not guilty counsel shall report on the results of plea negotiations, and such other matters, discussed pursuant to R. 3:9-1(b), which shall promote a fair and expeditious disposition of the case. At that time, the dates for hearing of motions and a further status conference, if necessary shall be scheduled according to the differentiated needs of each case. Each status conference shall be held in open court with the defendant present.

(d) Pretrial Hearings. Hearings to resolve issues relating to the admissibility of statements by defendant, pretrial identifications of defendant, sound recordings, and motions to suppress shall, unless otherwise ordered by the court, be held prior to the pretrial conference and, upon a showing of good cause, hearings as to admissibility of other evidence may also be held pretrial.

(e) Pretrial Conference. If the court determines that discovery is complete; that all motions have been decided or scheduled in accordance with paragraph (d); and that allreasonable efforts to dispose of the case without trial have been made and it appears that further negotiations or an additional status conference will not result in disposition of the case, or progress toward disposition of the case, the judge shall conduct a pretrial conference. The conference shall be conducted in open court with the prosecutor, defense counsel and the defendant present. Unless objected to by a party, the court shall ask the prosecutor to describe, without prejudice, the case including the salient facts and anticipated proofs and shall address the defendant to determine that the defendant understands: (1) the State's final plea offer, if one exists; (2) the sentencing exposure for the offenses charged, if convicted; (3) that ordinarily a negotiated plea will not be accepted after the pretrial conference and a trial date has been set; (4) the nature, meaning and consequences of the fact that a negotiated plea will not be accepted after the pretrial conference has been conducted and a trial date has been set; and (5) that the defendant has a right to reject the plea offer and go to trial and that if the defendant goes to trial the State must prove the case beyond a reasonable doubt. If the case is not otherwise disposed of, a pretrial memorandum shall be prepared in a form prescribed by the Administrative Director of the Courts. The pretrial memorandum shall be reviewed on the record with counsel and the defendant present and shall be signed by the judge who, in consultation with counsel, shall fix the trial date. No admissions made by the defendant or defendant's attorney at the conference shall be used against the defendant unless the admissions are reduced to writing and signed by the defendant and defendant's attorney. The court shall also inform the defendant of the right to be present at trial, the trial date set, and the consequences of a failure to appear for trial, including the possibility that the trial will take plce in defendant's absence.

3:8-3. Representation by Public Defender

The criminal division manager's office shall receive applications for services of the Public Defender and shall determine indigence. A defendant who qualifies for service shall be referred to the Office of the Public Defender no later than the pre-arraignment interview. The defense counsel appointed by the Office of the Public Defender shall promptly file an appearance. Representation of a defendant by the Office of the Public Defender shall continue through direct appeal from conviction, post-conviction proceedings for which the Rules of Court provide assigned counsel, and appeals from those proceedings.

3:8-2. Joint Representation

No attorney or law firm shall be permitted to enter an appearance for or represent more than one defendant in a multi-defendant indictment without securing permission of the court.

Such motion shall be made in the presence of the defendants sought to be represented as early as practicable in the proceedings but no later than the arraignment/status conference so as to avoid delay of the trial. For good cause shown, the court may allow the motion to be brought at any time.

3:8-1. Filing Appearance

The attorney for a defendant in a criminal action shall forthwith file an appearance with the criminal division manager's office of the county wherein venue is laid.

3:7-10. Execution of Service; Return

(a) Execution of Warrant. The warrant shall be executed in accordance with R. 3:3-3.

(b) Summons to an Individual. The summons shall be served upon an individual in accordance with R. 4:4-4.

(c) Summons to a Corporation. Service of a summons upon a defendant corporation, municipal or otherwise, shall be made in accordance with R. 4:4-4. If the defendant corporation does not appear, the court shall order the clerk to enter an appearance for said corporation and endorse the plea of not guilty on the indictment or accusation, and further proceedings may then be had thereon in the same manner as if the corporation had appeared and so pleaded. A plea to an indictment or accusation by a defendant corporation shall be made by an attorney of this State.

(d) Service Upon a Corporation by Publication. If the summons directed to a corporation is returned "not served" and it appears to the satisfaction of the court that the summons could not be served, the court shall by order direct the corporation to cause its appearance and plea to be entered by a day certain. A copy of such order shall within 5 days after the date thereof be published in a newspaper in this State once, at least 2 weeks preceding the day certain so specified. If the defendant corporation does not appear within the time specified by the order, the court, if satisfied that publication has been duly made, shall direct the clerk to enter an appearance and a plea of "not guilty" for the defendant corporation, and thereupon further proceedings may be had on the indictment or accusation as provided by these rules.

(e) Return. The officer executing a warrant shall make prompt return thereof to the court, and at the request of the prosecuting attorney any unexecuted warrant shall be returned and cancelled. The officer serving a summons shall make return thereof on or before the return day. At the request of the prosecuting attorney made at any time while the indictment or accusation is pending, a warrant returned unexecuted and not cancelled or a summons returned unserved or a duplicate thereof may be delivered by the clerk to the sheriff or other authorized officer for execution or service.

3:7-9. Form of Warrant and Summons

The warrant shall contain the name of the defendant or, if the defendant's name is unknown, any name or description by which the defendant can be identified with reasonable certainty, shall describe the offense charged in the indictment or accusation and shall command that the defendant be arrested and brought before the court. Conditions of pretrial release shall be fixed by the court and endorsed thereon, and in such case the sheriff or warden may take any bail. The summons shall be in the same form as the warrant except that it shall be directed to thedefendant and require the defendant to appear to plead before the court at a stated time and place. The summons shall also state that if the defendant fails to so appear, a warrant for defendant's arrest shall issue.

3:7-8. Issuance of Warrant or Summons Upon Indictment or Accusation

Upon the return of an indictment or the filing of an accusation a summons or warrant shall be issued in accordance with R. 3:3-1 by the criminal division manager as designee of the deputy clerk of the Superior Court in the manner provided by law for each defendant named in the indictment or accusation who is not under bail. The criminal division manager as designee of the deputy clerk of the Superior Court, upon request, shall issue more than one warrant or summons for the same defendant. If the defendant fails to appear in response to a summons, a warrant shall issue.

If a summons is issued upon indictment to a defendant who has not been previously held to answer a complaint, the defendant shall undergo all post-arrest identification procedures that are required by law upon arrest, on the return date of the summons, or upon written request of the appropriate law enforcement agency.

3:7-7. Joinder of Defendants

Two or more defendants may be charged in the same indictment or accusation if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count. The disposition of the indictment or accusation as to one or more of several defendants joined in the same indictment or accusation shall not affect the right of the State to proceed against the other defendants. Relief from prejudicial joinder shall be afforded as provided by R. 3:15-2.

3:7-6. Joinder of Offenses

Two or more offenses may be charged in the same indictment or accusation in a separate count for each offense if the offenses charged are of the same or similar character or are based on the same act or transaction or on 2 or more acts or transactions connected together or constituting parts of a common scheme or plan. Relief from prejudicial joinder shall be afforded as providedby R. 3:15-2.

3:7-5. Bill of Particulars

A bill of particulars shall be ordered by the court if the indictment or accusation is not sufficiently specific to enable the defendant to prepare a defense. The defendant shall move therefore pursuant to Rule 3:10-2. The application shall point out clearly the particulars sought by the defense. The prosecutor shall furnish the bill of particulars within 10 days after the order of the court. Further particulars may be ordered when a demand therefor is promptly made. A bill of particulars may be amended at any time, subject to such conditions as the interest of justice requires. Any particulars that have been furnished to the defendant pursuant to R. 3:13-3 and 4 shall not be subject to an application pursuant to this rule.

3:7-4. Amendment of Indictment or Accusation

The court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. Such amendment may be made on such terms as to postponing the trial, to be had before the same or another jury, as the interest of justice requires.The court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. Such amendment may be made on such terms as to postponing the trial, to be had before the same or another jury, as the interest of justice requires.

3:7-3. Nature and Contents of Indictment or Accusation; Timing of Supplemental Indictment

(a) Nature and Contents Generally. The indictment or accusation shall be a written statement of the essential facts constituting the crime charged, need not contain a formal commencement and shall be signed by the prosecuting attorney. The indictment shall be endorsed as a true bill by the foreperson and conclude: "against the peace of this State, the government and dignity of the same." Allegations made in one count of the indictment or accusation may be incorporated by reference in another count. It may be alleged in a single count either that the means by which the defendant committed the offense are unknown or that the defendant committed it by one or more specified means. An indictment or accusation or any count thereof charging the violation of a statute or statutes shall state the official or customary citation thereof, but error in the citation or its omission shall not be ground for dismissal of the indictment or accusation or for reversal of a conviction if the error or omission did not prejudicially mislead the defendant. Surplusage in the indictment or accusation may be stricken by the court on defendant's motion.

(b) Indictment for Murder. Every indictment for murder shall specify whether the act is murder as defined by N.J.S.A. 2C:11-3(a)(1), (2) or (3) and whether the defendant is alleged: (1) to have committed the act by his or her own conduct or (2) to have procured the commission of the offense by payment or promise of payment, of anything of pecuniary value or (3) to be the leader of a drug trafficking network, as defined in N.J.S.A.2C:35-3, and who, in furtherance of a conspiracy enumerated in N.J.S.A. 2C:35-3, commanded or by threat or promise solicited the commission of the offense.

(c) Specification of Aggravating Factors. In addition to the requirements in paragraph (b) of this rule, every indictment or supplemental indictment for a crime punishable by death shall specify any aggravating factors as set forth in N.J.S.A. 2C:11-3(c)(4) that the State intends to prove at the penalty phase.

(d) Timing of Supplemental Indictments. Any supplemental indictment specifying aggravating factors set forth in N.J.S.A. 2C:11-3(c)(4) shall be returned no later than 90 days after the return or unsealing of the original indictment, which period shall be enlarged only for good cause shown.

3:7-2. Use of Indictment or Accusation

A crime punishable by death shall be prosecuted by indictment. Every other crime shall be prosecuted by indictment unless the defendant, after having been advised of the right to indictment, shall waive the right in a signed writing, in which case the defendant may be tried on accusation. Such accusation shall be prepared by the prosecuting attorney and entitled and proceeded upon in the Superior Court. Nothing herein contained, however, shall be construed as limiting the criminal jurisdiction of a municipal court over indictable offenses provided by law and these rules.

3:7-1. Entitling of Papers

The indictment and all subsequent papers in connection therewith shall be entitled in the Superior Court.

3:6-11. Impanelment and Judicial Supervision of State Grand Jury

(a) Generally. All rules relating to grand juries shall apply to the State Grand Jury except as otherwise specifically provided by statute or rule.

(b) Designation of Assignment Judge. The Chief Justice shall designate an Assignment Judge of the Superior Court to impanel and supervise the State Grand Jury or Grand Juries. The Chief Justice may also designate one or more Judges of the Superior Court to assist said Assignment Judge with regard to impanelment and supervision of the State Grand Jury or Grand Juries and to perform such other duties and responsibilities with regard thereto as ordered by the Chief Justice or the designated Assignment Judge.

3:6-10. Discharge; Continuance of Term

(a) Term. A grand jury shall serve until discharged by the Assignment Judge, but not longer than 20 weeks unless the Assignment Judge shall order it continued as hereinafter provided. A grand jury shall not be discharged before the expiration of its term of service except for good cause. The continuance of such grand jury shall not affect the usual drawing, selecting and serving of further grand juries.

(b) Order for Continuance. Whenever it appears to the Assignment Judge that the grand jury has not completed its labors, although its ordinary term is about to expire, the Assignment Judge may, if satisfied of the necessity therefor, order that its term be continued. The order shall be made and filed within the session of court for which such grand jury shall have been drawn, and shall provide a continuance for a definite period of time not exceeding 3 calendar months, provided, however, that the Assignment Judge may make a further order, or orders, continuing such grand jury in office for a further term or terms of 3 calendar months each.

3:6-9. Finding and Return of Presentment

(a) Finding. A presentment may be made only upon the concurrence of 12 or more jurors. It may refer to public affairs or conditions, but it may censure a public official only where that public official's association with the deprecated public affairs or conditions is intimately and inescapably a part of them.

(b) Return. A presentment shall be returned in open court to the Assignment Judge, who shall be notified in advance thereof by the foreperson so that the judge may arrange to be available in court to receive it.

(c) Examination; Reference Back; Striking. Promptly and before the grand jury is discharged, the Assignment Judge shall examine the presentment. If it appears that a crime has been committed for which an indictment may be had, the Assignment Judge shall refer the presentment back to the grand jury with appropriate instructions. If a public official is censured the proof must be conclusive that the existence of the condemned matter is inextricably related to non-criminal failure to discharge that public official's public duty. If it appears that the presentment is false, or is based on partisan motives, or indulges in personalities without basis, or if other good cause appears, the Assignment Judge shall strike the presentment either in full or in part. As an aid in examining the presentment the Assignment Judge may call for and examine the minutes and records of the grand jury, with or without the aid of the foreperson or the prosecuting attorney, to determine if a substantial foundation exists for the public report. If the presentment censures a public official and the Assignment Judge determines not to strike, a copy of the presentment shall forthwith be served upon the public official who may, within 10 days thereafter, move for a hearing, which shall be held in camera. The public official may examine the grand jury minutes fully, under such reasonable supervision as the court deems advisable, and be permitted to introduce additional evidence to expose any deficiency.

(d) Filing and Publication. Such portions of the presentment as are not referred back to the grand jury for further action or are not stricken in accordance with paragraph (c) of this rule shall be filed and made public, and the Assignment Judge shall instruct the clerk of the grand jury to send copies thereof to such public bodies or officials as may be concerned with the criticisms and recommendations made therein and to the Administrative Director of the Courts. The presentment or any portion thereof shall not be made public by any person except the Assignment Judge. The Assignment Judge shall withhold publication of the presentment until the expiration of the time for the making of a motion for a hearing by a public official pursuant to R. 3:6-9(c), and if such motion is made, shall withhold publication of the presentment pending the judge's determination.

(e) Review. The action taken by the Assignment Judge pursuant to this rule is judicial in nature and is subject to review for abuse of discretion by the State or by any aggrieved person, including any member of the grand jury making the presentment.

3:6-8. Finding and Return of Indictment; No Bill

(a) Return; Secrecy. An indictment may be found only upon the concurrence of 12 or more jurors and shall be returned in open court to the Assignment Judge or, in the Assignment Judge's absence, to any Superior Court judge assigned to the Law Division in the county. With the approval of the Assignment Judge, an indictment may be returned to such judge by only the foreperson or the deputy foreperson rather than with all other members of the grand jury. Such judge may direct that the indictment shall be kept secret until the defendant is in custody or has given bail and in that event it shall be sealed by the clerk, and no person shall disclose its finding except as necessary for the issuance and execution of a warrant or summons.

(b) No Bill. If the defendant has been held to answer a complaint and, after submission to the grand jury, no indictment has been found, the foreperson shall forthwith so report in writing to the court, who shall forthwith order the defendant's release unless the defendant's detention is required by other pending proceedings. Notice of the action of the grand jury shall also be mailed by the clerk of the court to the defendant's attorney, a defendant not in custody, and the defendant's sureties if bail has been posted.

3:6-7. Secrecy of Proceedings

Except as otherwise provided by R. 3:13-3, the requirement as to secrecy of proceedings of the grand jury shall remain as heretofore, and all persons other than witnesses, permitted by R. 3:6-6 to be present while the grand jury is in session, shall be required to take an oath of secrecy before their admission thereto. Such oath shall also be taken by typists making transcripts of testimony given before the grand jury.

3:6-6. Who May Be Present; Record and Transcript

(a) Attendance at Session. No person other than the jurors, the prosecuting attorney, the clerk of the grand jury, the witness under examination, interpreters when needed and, for the purpose of recording the proceedings, a stenographer or operator of a recording device may be present while the grand jury is in session. No person other than the jurors, the clerk, the prosecuting attorney and the stenographer or operator of the recording device may be present while the grand jury is deliberating. The grand jury, however, may request either (1) the prosecuting attorney and the stenographer or operator or (2) the clerk to leave the jury room during its deliberations.

(b) Record; Transcript. A stenographic record or sound recording shall be made of all testimony of witnesses, comments by the prosecuting attorney, and colloquy between the prosecuting attorney and witnesses or members of the grand jury, before the grand jury.

After an indictment has been returned, at the request of the defendant, a transcript of the grand jury proceedings shall be made. The request shall designate the portion or portions of the proceedings to be transcribed and the person or persons to whom the transcript is to be furnished. A copy of the request for a transcript will be served contemporaneously by the defendant upon the prosecutor, who may move for a protective order pursuant to R. 3:13-3(f). The prosecutor may request a copy of the transcript at any time.

(c) Retention of Records. If no request has been made or order entered directing a transcript of the grand jury proceedings to be made within six months after their termination, the stenographic record or sound recording shall be sealed and deposited with the operations division manager's office who shall retain it subject to the directions of the Administrative Director of the Courts.