2009 – 2011 REPORT OF THE MUNICIPAL COURT PRACTICE COMMITTEE
January 24, 2011
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TABLE OF CONTENTS
I. RULE AMENDMENTS RECOMMENDED
A. Proposed Amendments to R. 7:7-7. Discovery and Inspection . . . . . . . . . . . . . . 1-4
B. Proposed New Rule R. 7:7-11. Adherence to Standing Court
Order for Use by Acting Judge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5-6
C. Proposed Amendments to R. 7:9-1. Sentence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7-8
D. Proposed Amendment to R. 7:14-3. Court Calendar; Attorneys . . . . . . . . . . . . .9-10
E. Proposed Amendment to “Guidelines for Determination of
Consequences of Magnitude” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11-12
II. OTHER RECOMMENDATIONS
A. Proposed Recommendation to Legislature to Amend N.J.S.A. 39:5-3 (a) . . . . . . .13
B. Referral to the Municipal Practice Committee in State v. Kent,
391 N.J. Super. 352, 382 (App. Div. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14-15
III. RECOMMENDATIONS CONSIDERED AND REJECTED
A. Proposed Amendment to R. 7:6-2. Pleas, Plea Agreements . . . . . . . . . . . . . . . . . 16
B. Proposed Amendment to R. 7:8-7(b). Appearance for the Prosecution . . . . . .16-18
C. Proposed Amendment to R. 7:14-1. Opening Statement . . . . . . . . . . . . . . . . . . . . 18
D. Proposed Amendment to Guideline 4 of the “Guidelines for
Operation of Plea Agreements in the Municipal Courts of New Jersey” . . . . . 18-19
E. Proposed Amendment to “Guidelines for Determination of
Consequences of Magnitude” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
F. Proposed Legislative Change to Amend N.J.S.A. 2B:25-5 . . . . . . . . . . . . . . . . .19-20
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G. Proposed New Rule 7:7-12. Sanctions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20-21
IV. MATTERS HELD FOR CONSIDERATION
A. Proposed Amendment to R. 7:7-2. Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
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I. RULE AMENDMENTS RECOMMENDED
A. Proposed Amendments to R. 7:7-7. Discovery and Inspection.
As proposed, the rule amendment to R. 7:7-7, the municipal court’s
discovery rule, is designed to accomplish more than one objective. This rule was
first adopted by the Supreme Court in 1997 along with the adoption of the entire
stand-alone Part VII Rules. At that time, Title 2B had not been enacted into law
and there were some, albeit few, municipal courts which did not have a municipal
prosecutor. Thus the rule had to be written to accommodate the procedure for
the distribution of discovery in those courts that did not have a prosecutor. Since
the enactment of Title 2B, all municipal courts have a prosecutor, making some
of the language unnecessary. That unnecessary language has been deleted.
Pursuant to R. 7.8-7, the only time a public prosecutor would not be
involved in the discovery process would be if a private prosecutor were
appointed, pursuant to State v. Storm, 141 N.J. 245 (1995), to represent the
State in a cross-complaint case. See R. 7:8-7(b). The language of the rule was
also amended to mirror the requirements of R. 7:8-7(b).
When the rule was originally adopted by the Court in 1997, the Court
changed the scope of the rule to limit discovery to cases “involving a
consequence of magnitude or when ordered by the Court.” In the recently
decided case, State v. Green 417 N.J. Super. 190 (App Div. 2010), the defendant
was charged with going 63 m.p.h. in a 45 m.p.h. zone, which did not appear to be
a consequence of magnitude case. Nevertheless, the Appellate Division ruled
that the defendant was entitled to discovery. Since 1997, the technical
requirements of the rule have been honored more in their breach than in their
observance. Throughout the State, prosecutors routinely honor discovery
requests in mundane cases of speeding, careless driving, and first offense
criminal cases, where no consequence of magnitude in terms of sentencing is
even contemplated and there has been no prior court order granting defendant’s
request for discovery. Accordingly, the holding in State v. Green reflects the
current practice of discovery on minor matters. Therefore, the Committee is
requesting that the Court amend the discovery rule to make discovery applicable
to all cases in municipal court. Of course, that would also apply to reciprocal
discovery by the defendant to the prosecutor.
Finally, in Constantine v.Township of Bass River, 406 N.J. Super. 305,
331 (App. Div.), certif. denied, 200 N.J. 208 (2009), the Committee was asked to
render an opinion on the cost of discovery fees and who should be the
responsible government party for disseminating said fees. The Committee
deliberated at length on this issue. Ultimately, the Committee decided that since
discovery in municipal court emanated first from the State, it was essentially an
executive function and no fee should appear in the rule for routine discovery
promulgated by the judiciary on a separation of powers analysis. However, the
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Committee recommends that if a request for supplemental discovery were made
by the parties and the demand for cost of the supplemental discovery were
deemed by one of the parties to be excessive, that issue could be brought before
the court and decided by the judge pursuant to the proposed amendment to R.
7:7-7(e)(1).
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R. 7:7-7. Discovery and Inspection.
a) Scope. If the government is represented by the municipal prosecutor or a
private prosecutor in a cross complaint case, discovery shall be available to the
parties only as provided by this rule, unless the court otherwise orders. [In the
absence of a municipal or private prosecutor, discovery shall be available to the
parties in the manner directed by the court.] All discovery requests by defendant
shall be served on the municipal prosecutor, who shall be responsible for making
government discovery available to the defendant. If the matter is, however, not
being prosecuted by the municipal prosecutor, the municipal prosecutor shall
transmit defendant's discovery requests to the private prosecutor in a cross
complaint case, pursuant to R. 7:8-7(b).[; or, if there is no prosecutor, the
municipal prosecutor shall transmit defendant's court-ordered discovery requests
to the complaining witness.]
(b) Discovery by Defendant. In all cases [involving a consequence of
magnitude or when ordered by the court,] the defendant, on written notice to the
municipal prosecutor or private prosecutor in a cross complaint case, shall be
allowed to inspect, copy, and photograph or to be provided with copies of any
relevant:
(1) no change;
(2) no change;
(3) no change;
(4) no change;
(5) no change;
(6) no change;
(7) no change;
(8) no change;
(9) no change;
(10) no change;
(11) no change.
(c) Discovery by the State. In all cases [involving a consequence of
magnitude or when ordered by the court,] the municipal prosecutor or private
prosecutor in a cross complaint case, on written notice to the defendant, shall be
allowed to inspect, copy, and photograph or to be provided with copies of any
relevant:
(1) no change;
(2) no change;
(3) no change;
(4) no change;
(5) no change.
(d) No Change.
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(e) Protective Orders.
(1) Grounds. Upon motion and for good cause shown, the court may
at any time order that the discovery or inspection, copying or
photographing 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; the
reasonableness of the cost of any supplemental discovery ordered
by the court to be disseminated to the parties; and any other
relevant considerations.
(2) no change.
(f) No Change
(g) No Change.
Note: Source-Paragraph (a): new; paragraph (b): R. (1969) 7:4-2(h), 3:13-3(c);
paragraph (c): R. (1969) 7:4-2(h), 3:13-3(d); paragraph (d): R. (1969) 7:4-2(h), 3:13-
3(e); paragraph (e): R. (1969) 7:4-2(h), 3:13-3(f); paragraph (f) new; paragraph (g): R.
(1969) 7:4-2(h), 3:13-3(g). Adopted October 6, 1997 effective February 1, 1998;
paragraph (c) amended July 5, 2000 to be effective September 5, 2000; paragraph (f)
amended July 16, 2009 to be effective September 1, 2009; paragraphs (a), (b), (c) and
(e)(1) amended __ , 2011 to be effective _________ .
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B. Proposed New Rule 7:7-11. Adherence to Standing Court Order for
Use by Acting Judge.
In State v. Broom-Smith, 201 N.J. 229, 235 (2010), the Supreme Court
held that a Berkeley Township municipal court judge, who had been crossassigned
to Dover Township, could properly issue a search warrant for
defendant’s house in Dover Township. Nonetheless, the Court decided to
impose some “order and uniformity . . . on the cross-assignment procedure.” Id.
at 235. It therefore mandated certain restrictions for the issuance of warrants by
cross-assigned judges. First, it said that a cross-assigned judge may be
contacted only where the territorially-appropriate judge was unable to hear the
warrant application. Id. at 235-36. Second, it stated that the cross-assignment
order should “prescribe the sequence to which substitute judges are to be
resorted.” Id. at 236. Third, it mandated that when a cross-assigned judge
issues a warrant, a record should be made as to why the application was not
made to the territorially-appropriate judge. Ibid. The Court then referred these
issues to the Municipal Practice Committee “for recommendations regarding the
retooling of the rule in accordance with the principles to which we have
adverted.” Id. at 237.
In response to Broom-Smith, the overwhelming majority of Assignment
Judges have already issued standing orders setting forth the sequence by which
acting judges are to be contacted when the sitting judge or judges are
unavailable in the various municipal courts of each vicinage. The proposed rule
places the onus on the contacted acting judge to ensure that law enforcement is
using the sequence mandated by the Assignment Judges’ standing order in
contacting that particular judge.
The proposed rule also makes clear this procedure is only to be used
when the particular municipal court is not in session as there may be anomalous
situations when another acting judge, not the first judge in the prescribed
sequence, is sitting in that court when the court is in session and that acting
judge is contacted by law enforcement for a pre-trial application during a court
session.
Finally, the Committee thought the problem raised in Broom-Smith was
endemic to municipal court practice and hence it was inappropriate to amend R.
1:12-3, a rule of general application. Thus, the Committee unanimously
recommends the adoption of a new rule to be included in Part VII, R. 7:7-11,
Adherence to Standing Court Order for Use by Acting Judge.
The proposed amendment to the rule is as follows.
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Proposed R. 7:7-11. Adherence to Standing Court Order for Use by Acting
Judges.
Pursuant to any pretrial application for the issuance of a telephonic arrest
warrant, R. 7:2-1(e), for the issuance of a Temporary Restraining Order (TRO),
R. 5:7A, for the issuance of a search warrant, R. 3:5-3(a) or R. 7:5-1(a) or for the
setting of bail, R. 3:26 and R. 7:4-2(a), if the sitting judge(s) for the court whose
jurisdiction is invoked for any of the above pretrial applications is unavailable for
any reason when court is not in session, the contacted acting judge shall adhere
to a standing Order entered by an Assignment Judge setting forth the sequence
by which such acting judges are to be contacted.
Note: Adopted , 2011, to be effective .
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C. Proposed Amendments to R. 7:9-1. Sentence.
A member of the public brought to the attention of the Committee a case
in which a public official was convicted in municipal court of the disorderly
persons offense of electioneering. Under N.J.S.A. 2C:51-2, Forfeiture of public
office, position, or employment, that potential forfeiture should have been
addressed. The municipal prosecutor in the case, however, did not raise the
issue of forfeiture at the time of sentencing, because he was not “comfortable”
recommending that the defendant be removed from office. As a consequence,
the sentencing municipal court judge did not order forfeiture of the office held by
defendant.
The member of the public suggested that the Committee tighten the court
rules, so that this incident not be repeated. He argued in support of such a
change that “[u]nless a court rule . . . is promulgated . . ., it remains too easy for
politically-appointed municipal prosecutors to avoid raising the politically sensitive
question of whether a given offense ought to result in a public official’s forfeiture
of office.”
In response to the citizen’s concerns, the Committee is recommending an
amendment to R. 7:9-1(b) that would require the municipal court judge to state
on the record his or her reasons for ordering or denying forfeiture of office under
N.J.S.A. 2C:51-2. This amendment affirms that the ultimate responsibility for
considering the applicability of the forfeiture of public office, position, or
employment requirements of N.J.S.A. 2C:51-2 rests with the court.
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Proposed Amendment to Rule 7:9-1. Sentence.
(a) No Change.
(b) Statement of Reasons. At the time the sentence is imposed, the court
shall state its reasons for imposing the sentence, including the findings
respecting the criteria prescribed by N.J.S.A. 2C:44-1 to N.J.S.A. 2C:44-3, in
disorderly, and petty disorderly cases, and indictable fourth degree cases, within
the jurisdiction of the municipal court, for withholding or imposing imprisonment,
fines or restitution and pursuant to N.J.S.A. 2C:51-2 for ordering or denying
forfeiture of public office, position, or employment. The court shall also state its
factual basis for its finding of particular aggravating or mitigating factors affecting
sentence.
Note: Source-Paragraph (a): R. (1969) 7:4-6(a); paragraph (b): R. (1969) 7:4-6(c);
paragraph (c): R. (1969) 3:21-4(c); paragraph (d): R. (1969) 7:4-6(e) and R. (1969)
3:21-7. Adopted October 6, 1997 to be effective February 1, 1998. Paragraph (b)
amended ___2011 to be effective _________.
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D. Proposed Amendment to R. 7:14-3. Court Calendar; Attorneys.
The Committee undertook a study of R. 7:14-3, after the Administrative
Office of the Court’s Management and Operations Committee questioned a
member of the Committee about the meaning of the rule. The Committee found
that the language, which was taken from an old 1969 rule, R. 7:10-2, was
outmoded. It also noted that the sequence of matters set forth in the rule is not
the one generally followed in municipal courts. Accordingly, the Committee
decided to rewrite the rule to comport with current practice and give municipal
courts more flexibility in the order they follow in calling cases.
First, the language of the rule was modernized. Second, the introductory
sentences were amended to recognize the usual practice of taking summary
matters first where the defendant is represented by an attorney. These matters
move swiftly and taking these defendants first allows attorneys to honor
commitments in other courts. The introduction also gives municipal court judges
more discretion to order matters in the way most suitable and efficient for that
court. Third, the ordering of other matters, paragraphs (1) through (8), now
reflects what is currently the common practice in most municipal courts.
Finally, the Committee added a paragraph on the staggering of court
sessions. The Committee believes that the staggering of sessions is an
important case management tool, which greatly increases the efficiency of the
courts, cuts down on waiting time for court customers, reduces court
overcrowding in smaller facilities, reduces parking and traffic congestion, allows
for more manageable court security, and increases customer satisfaction. The
Committee thought it important to encourage this practice, while not making it an
inflexible requirement in every circumstance.
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R. 7:14-3. [Court calendar; attorneys].
[(a) Court Calendar. On each hearing day, the court shall follow as closely as
possible, the following order:
(1) applications for adjournment;
(2) unlitigated motions;
(3) arraignments;
(4) guilty pleas;
(5) litigated motions;
(6) contested matters with an attorney;
(7) other contested matters.
(b) Appearances of Attorneys. Appearances by attorneys shall be entered
promptly with the court or municipal court administrator. Unless the appearance
is entered, the attorney shall not receive priority on the trial list.]
R. 7:14-3. Court Calendar; Attorneys
(a) Court Calendar. At each court session, to the extent possible, the court
shall give priority to attorney matters that are summary in nature. Other cases
should be called in the following order, subject to the court’s discretion:
(1) requests for adjournments;
(2) guilty pleas and first appearances;
(3) pretrial conferences;
(4) uncontested motions;
(5) contested matters with attorneys;
(6) noncompliance with time payment issues;
(7) contested matters without attorneys;
(8) matters to be placed on the record.
(b) Courts shall stagger the scheduling of cases, where necessary, in order to
limit inconvenience to all parties.
______________________________________________________
Note: Adopted ____, 2011, to be effective _________.
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E. Proposed Amendment to “Guidelines for Determination of
Consequences of Magnitude.”
In a letter dated June 1, 2010, the Court asked this Committee and the
Criminal Practice Committee to form a joint subcommittee to consider and make
recommendations on what constitutes a consequence of magnitude that would
entitle an indigent defendant to assigned counsel. The Court also requested the
subcommittee propose changes, if appropriate, to the “Guidelines for
Determination of Consequences of Magnitude.”
The joint subcommittee recommended that subsection (b) of the
Guidelines be amended so that the monetary sanction that would require
defendant to be assigned counsel is raised from $750 to $800, exclusive of
costs. The subcommittee took into consideration that it has been more than six
years since the Court adopted the original Guidelines, during which time the cost
of living has increased.
The Committee adopted the recommendation of the subcommittee.
Therefore, it joins the Criminal Practice Committee in recommending the
proposed amendment to the Guidelines:
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Appendix 2.
GUIDELINES FOR DETERMINATION OF CONSEQUENCE OF MAGNITUDE
(SEE RULE 7:3-2)
On October 6, 1997, the Supreme Court adopted the Comprehensive Revision of
Part VII of the Rules of Court to be effective on February 1, 1998. R. 7:3-2 of that
Comprehensive Revision provides for the assignment of counsel "[i]f the court is
satisfied that the defendant is indigent and that the defendant faces a consequence of
magnitude or is otherwise constitutionally or by law entitled to counsel...." The Supreme
Court directed that guidelines for the determination of a consequence of magnitude be
developed by the Supreme Court Municipal Court Practice Committee to assist
municipal court judges in deciding what factors should be considered when determining
a consequence of magnitude.
In response to this direction, the Supreme Court Municipal Court Practice
Committee developed the following set of guidelines. The Supreme Court, as
recommended by the Committee, has included the guidelines as an Appendix to the
Part VII Rules.
In determining if an offense constitutes a consequence of magnitude in terms of
municipal court sentencing, the judge should consider the following:
(1) Any sentence of imprisonment;
(2) Any period of (a) driver's license suspension, (b) suspension of the
defendant's nonresident reciprocity privileges or (c) driver's license ineligibility; or
(3) Any monetary sanction imposed by the court of [$750] $800 or greater in
the aggregate, except for any public defender application fee or any costs
imposed by the court. A monetary sanction is defined as the aggregate of any
type of court-imposed financial obligation, including fines, [costs,] restitution,
penalties and/or assessments.
It should be noted that if a defendant is alleged to have a mental disease or
defect, and the judge, after examination of the defendant on the record, agrees that the
defendant may have a mental disease or defect, the judge shall appoint the municipal
public defender to represent that defendant, if indigent, regardless of whether the
defendant is facing a consequence of magnitude, if convicted.
Note: Guidelines adopted July 28, 2004 to be effective September 1, 2004. Subsection
(3) amended 2011, to be effective .
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II. OTHER RECOMMENDATIONS
A. Proposed Recommendation to the Legislature to Amend N.J.S.A.
39:5-3(a).
In State v. Buczkowski, 395 N.J. Super. 40 (App. Div. 2007), the Appellate
Division held that under N.J.S.A. 39:5-3(a), most traffic complaints must be
served within 30 days after the offense date. N.J.S.A. 39:5-3(a) provides:
“When a person has violated a provision of this subtitle, the judge may, within 30
days after the commission of the offense, issue process directed to a constable,
police officer, or the chief administrator for the appearance or arrest of the person
so charged . . . . “ Before Buczkowski, it was assumed that this statute meant
that process must be issued within 30 days, but that service did not need to be
accomplished within that short time frame. Buczkowski’s holding has created
some practical problems for municipal courts.
Most traffic complaints are issued and served at the scene by the police
officer writing the ticket. In such instances, issuing and serving a traffic complaint
within 30 days is no problem. However, every year a certain number of traffic
complaints are filed in the municipal courts by ordinary citizens. Under
Buczkowski, the court must accept for filing these citizen complaints, make a
probable cause determination, issue process and actually serve the defendant
within 30 days of the commission of the offense. The municipal courts have had
difficulty accomplishing all these tasks within this time limitation.
Most municipal courts serve complaints initially through ordinary mail; the
most cost-effective method. If the defendant responds to the complaint, then
service is effectuated. However, if there is no response, then courts will attempt
service through the more expensive method of simultaneous service—that is—
serving by certified mail and ordinary mail simultaneously. These attempts at
service through the mail can quickly run the clock on a 30-day deadline. A
further difficulty is presented if the citizen complaint is filed in a court where the
judge has a conflict and therefore must be transferred to another municipal court.
In short, adherence to the holding in Buczkowski may result in the dismissal of
meritorious citizen complaints that were otherwise filed in the municipal court on
a timely basis due to delays in mailing, bad addresses and/or other mail delivery
issues. In summary, a 30-day deadline is too short.
Accordingly, the Committee recommends that the Court ask the
Legislature to extend the 30-day deadline in N.J.S.A. 39:5-3(a) to 90 days. The
Committee noted that the Legislature recently extended the deadline for filing
complaints under N.J.S.A. 39:4-81, running a red light, from 30 days to 90 days.
The Committee believes that extending the deadline will give the municipal
courts sufficient time to issue and serve citizen traffic complaints.
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B. Referral to the Municipal Practice Committee in State v. Kent, 391
N.J. Super. 352, 382 (App. Div. 2007).
In State v. Kent, 391 N.J. Super. 352 (App. Div. 2007) the Appellate
Division held that the Confrontation Clause of the Federal Constitution and the
testimonial standards of admissibility set forth in Crawford v. Washington, 541
U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) apply to drunk driving
prosecutions in municipal court. The Kent court asked the Legislature, the
Criminal Practice and Municipal Court Practice Committees to “consider the
adoption of statutes or court rules patterned after N.J.S.A. 2C:35-19 that would
create similar notice-demand requirements for State Police lab reports used in
DWI trials and also for blood sample certificates generated under N.J.S.A.
2A:62A-11.” State v. Kent, supra, 391 N.J. Super. at 382.
At the May 2007 Criminal Practice Committee meeting, a Joint
Municipal/Criminal Subcommittee was formed to address these issues. On May
16, 2007, the Supreme Court granted certification in State v. Buda, 191 N.J. 317
(2007); State v. Berezansky, 191 N.J. 317 (2007); State v. Sweet, 191 N.J. 318
(2007), and State in the Interest of J.A., 191 N.J. 317 (2007), which addressed
similar confrontation issues as those raised in Kent. The Subcommittee decided
to await these rulings to reconvene. In June 2008, the Supreme Court decided
State v. Buda, 195 N.J. 278 (2008), cert. denied, ____ U.S.____, 129 S. Ct. 2858,
174 L. Ed. 2d 601 (2009); State v. Sweet, 195 N.J. 357 (2008), cert. denied,
____ U.S.____, 129 S. Ct. 2858, 174 L. Ed. 2d 601 (2009), and State in the
Interest of J.A., 195 N.J. 324 (2008). As set forth in its 2007-2009 report, the
Criminal Practice Committee decided that in light of these decisions, it need not
reconvene the Subcommittee or recommend a rule change at that time.
Subsequent to the filing of the Committee’s report, on June 25, 2009, the
United States Supreme Court decided Melendez-Diaz v. Massachusetts, ___
U.S. ___, 129 S. Ct. 2527, 174 L. Ed. 2d 314 (2009) where it held that a state
forensic analyst’s laboratory report prepared for use in a criminal prosecution is
“testimonial” evidence subject to the Confrontational Clause as set forth in
Crawford v. Washington. The Melendez Court found that the admission of this
evidence violated the defendant’s 6th Amendment right to confront witnesses
against him.
Thereafter, on June 29, 2009, the United States Supreme Court granted
certiorari in Briscoe v. Virginia, ____ U.S. ____, 129 S. Ct. 2858, 174 L. Ed. 2d
600 (2009), to resolve the following question: “If a state allows a prosecutor to
introduce a certificate of a forensic laboratory analysis, without presenting the
testimony of the analyst who prepared the certificate, does the state avoid
violating the Confrontation Clause of the Sixth Amendment by providing that the
accused has a right to call the analyst as his own witness?” During the 2009-
2011 term, the Criminal Practice Committee decided to revisit Kent after Briscoe
was decided.
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On January 25, 2010, the Supreme Court decided Briscoe. Briscoe v.
Virginia, __ U.S. __ 130 S. Ct. 1316, 175 L. Ed. 2d 966 (2010). In Briscoe, the
Supreme Court vacated the judgment of the Virginia Supreme Court and
remanded the case for further proceedings not inconsistent with the opinion in
Melendez-Diaz v. Massachusetts, supra, ___ U. S. ___, 129 S.Ct. 2527, 174 L.
Ed. 2d 314.
Subsequently, the Criminal Practice Committee decided not to
recommend a rule change on this issue. Instead, it decided to recommend to the
Court that it support a legislative change consistent with Kent and the U.S.
Supreme Court cases. The Municipal Practice Committee joins with the Criminal
Practice Committee in recommending such a statutory change.
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III. RECOMMENDATIONS CONSIDERED AND REJECTED
A. Proposed Amendment to R. 7:6-2. Pleas, Plea Agreements.
An assignment judge asked the Committee to consider amending R. 7:6-2
to require municipal court judges to place a defendant under oath before taking a
factual basis for a guilty plea. The assignment judge believed that oaths should
be required for pleas to cases where there was a consequence of magnitude.
The parallel Part III rule, R. 3:9-2, does require Superior Court judges to place a
defendant under oath when taking a plea.
The Committee noted that when the Part VII rules were adopted in 1994, it
decided to depart from the Part III requirement of placing defendants under
oaths, because municipal court matters are relatively minor compared to
Superior Court criminal matters. In discussing the matter again, the Committee
again concluded that it was unwise to require placing a defendant under oath
before a guilty plea in municipal court. Because of the large volume of cases
handled in municipal court, requiring an oath for each guilty plea would be unduly
time consuming. Further, the Committee rejected the idea that an oath should be
taken in some cases, but not others. It believes this would send a signal to
defendants that in cases where no oath was given, they did not need to tell the
truth.
B. Proposed Amendment to R. 7:8-7(b). Appearance for the
Prosecution.
In 2007, the Supreme Court amended R. 7:8-7 to eliminate the
appearance of private prosecutors to represent the State in most situations,
except where there are cross-complaints that present a potential for conflict for
the municipal prosecutor. Shortly after the change to R. 7:8-7, the representative
on the Committee from the New Jersey Municipal Prosecutors Association
(Association) reported to the Committee that the Association found that the rule
change increased the workload of the municipal prosecutors, since they now
have to handle cases previously handled by private prosecutors. The
Association favored changing the rule back again so that private prosecutors
would be permitted in most cases. In response, the Committee formed a
subcommittee to study the matter. The Committee also asked the subcommittee
to study whether the court rule change eliminating most private prosecutors
increased the fiscal burden on the municipalities. The Supreme Court had asked
the Committee to investigate this question and report back on the results.
First, in order to determine the extent of the fiscal burden, the
subcommittee distributed a questionnaire on this subject to the municipal
prosecutors in Somerset and Union Counties and to the members of the
Association. Only one responder reported an impact. That was in a municipal
court where a Rutgers campus is located. Prior to the rule change, Rutgers had
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employed a private prosecutor to prosecute municipal offenses that took place on
its campus. The other responses indicated that there was no significant increase
in cost to the municipalities.
Second, the subcommittee recommended changing R. 7:8-7(b) as follows
(proposed additions underlined, [proposed deletions bracketed]):
(b) Appearance for the Prosecution. The municipal
prosecutor, municipal attorney, Attorney General, county
prosecutor, or county counsel, as the case may be, may
appear in any municipal court in any action on behalf of the
State and conduct the prosecution either on the court's
request or on the request of the respective public official.
[The court may also, in its discretion and in the interest of
justice, direct the municipal prosecutor to represent the
State. The court may permit an attorney to appear as a
private prosecutor to represent the State in cases involving
cross-complaints.] As to any citizen complaints, the
municipal prosecutor may, in his or her sole discretion, and
in the interests of justice, choose to prosecute that
complaint, choose not to prosecute it, or dismiss it. “Citizen
complaints” mean any complaints brought by someone other
than a police and/or law enforcement officer and /or a
government employee, acting in his official capacity. If the
municipal prosecutor chooses not to prosecute, the court
may permit an attorney to appear as a private prosecutor to
represent the State in such cases, whether or not they
involve cross-complaints.
Such private prosecutors may be permitted to appear
on behalf of the State only if the court has first reviewed the
private prosecutor's motion to so appear and an
accompanying certification submitted on a form approved by
the Administrative Director of the Courts. The court may
grant the private prosecutor's application to appear if it is
satisfied that [a potential for conflict exists for the municipal
prosecutor due to the nature of the charges set forth in the
cross-complaints] the private prosecutor qualifies pursuant
to State v. Storm, 141 N.J. 245 (1995). The court shall place
such a finding on the record.
After careful consideration, a large majority of the Committee voted to
reject this rule proposal. The Committee noted that N.J.S.A. 2B:25-5 places a
duty on municipal prosecutors to prosecute all cases within the jurisdiction of the
municipal court. The proposed amendment conflicts with this statutory duty in
that it would allow municipal prosecutors to decline to prosecute certain cases.
The Committee also noted that it is the role of the municipal prosecutor to screen
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the substance of citizen complaints to ensure that only meritorious complaints
are prosecuted. When citizen complaints are prosecuted by a private prosecutor,
acting in the name of the state, this screening does not take place and nonmeritorious
complaints are prosecuted. This burdens the court, and more
importantly, defendants, who are dragged into court needlessly. Finally, the
Committee stated that since the rule change in 2007, prohibiting most private
prosecutors, the professionalism of the municipal courts has been raised. The
Committee is apprehensive that if the proposed rule amendment were adopted
that the gains that have been made since 2007 would be lost.
C. Proposed Amendment to R. 7:14-1. Opening Statement.
A member of the Committee suggested that R. 7:14-1 be modified to
reference the model opening statements for municipal court sessions that Judge
Grant distributed in May 2009. The Committee decided that this amendment was
unnecessary. The Committee thought it was more useful to train the municipal
court judges to follow the general outline of the model opening statements, rather
than to change the rules.
D. Proposed Amendment to Guideline 4 of the “Guidelines for
Operation of Plea Agreements in the Municipal Courts of New
Jersey.”
In response to a citizen’s concerns that the municipal courts were not
enforcing the forfeiture of public forfeiture statute (see Part I, section C, for a
more complete discussion of this issue), the Committee considered whether it
should amend the “Guidelines for Operation of Plea Agreements in the Municipal
Courts of New Jersey,” an Appendix to Part VII of the Court Rules. The proposal
was to make the following changes to Guideline 4 (proposed additions
underlined):
No plea agreements whatsoever will be
allowed in drunken driving, certain drug offenses or
forfeiture of public office, position, or employment
offenses. Those offenses are:
A. Driving while under the influence of
liquor or drugs (N.J.S.A. 39:4-50), and
B. Possession of marijuana or hashish
(N.J.S.A. 2C:35-10a(4)); being under the
influence of a controlled dangerous substance
or its analog (N.J.S.A. 2C:35-10b); and use,
possession or intent to use or possess drug
paraphernalia, etc. (N.J.S.A. 2C:36-2), and
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C. Charges involving a likelihood of
forfeiture of public office, position, or
employment, pursuant to N.J.S.A. 2C:51-2,
upon conviction.
The Committee unanimously rejected this proposal. It pointed out that the
municipal court judge or municipal prosecutor might not know, at the time of the
plea agreement, whether the defendant was a public office holder or public
employee. Moreover, the Committee, as a general principal, is opposed to
further limiting the powers of municipal courts. It expressed the opinion that
prohibiting certain types of plea agreements in municipal court demonstrates a
mistrust of the municipal court system, which is no longer justified.
In response to the citizen’s concerns, the Committee recommended the
change to R. 7:9-1(b), outlined in Part I, section C, of this report.
E. Proposed Amendment to “Guidelines for Determination of
Consequences of Magnitude.
The Consequences of Magnitude Joint Subcommittee (see Part I, section
E of this report) referred to the Committee the issue of whether the immigration
consequences of a conviction should be added to the Guidelines as a
consequence of magnitude. The Committee discussed the many complex issues
involved in making the immigration consequences a consequence of magnitude,
including that a court has no way to know whether a defendant is a citizen of the
United States. Further, municipal court judges are not experts in immigration law
and would find it difficult to determine whether a conviction would lead to
negative immigration consequences. In view of these difficulties, the Committee
voted unanimously not to recommend such an amendment to the Guidelines.
F. Proposed Legislative Change to N.J.S.A. 2B:25-5.
In response to a citizen’s letter concerning the failure of a municipal
prosecutor to seek the forfeiture of public office or employment under N.J.S.A.
2C:51-2 (see Part I, section C, for a more complete discussion of this issue), the
Committee considered recommending to the Supreme Court a change to
N.J.S.A. 2B:25-5(a), Duties of a Municipal Prosecutor. That statute currently
provides (in relevant part):
A municipal prosecutor shall be responsible for handling all
phases of the prosecution of an offense, including, but not
limited to, discovery, pretrial and post-trial hearings, motions,
dismissals, removals to Federal District Court and other
collateral functions authorized to be performed by the
municipal prosecutor by law or Rule of Court.
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[N.J.S.A. 2B:25-5(a).]
The Committee discussed whether this statute should be amended to
make it explicit that the municipal prosecutor has the responsibility to bring
sentencing issues before the municipal court.
The Committee unanimously rejected this proposal. The Committee
concluded that the proposal was unfair to municipal prosecutors, because
prosecutors may not know that a defendant is a public official or government
employee at the time of sentencing. It also noted that the current forfeiture
statute, N.J.S.A. 2C:51-2, states that if the forfeiture issue is not raised at the
time of sentencing, the court may still order the forfeiture upon the request of the
county prosecutor, Attorney General, other public officer or public entity having
authority to remove the person convicted from his public office, position or
employment.
As an alternative to this proposal, the Committee recommended the
change to R. 7:9-1(b), outlined in Part I, section C, of this report.
G. Proposed New Rule 7:7-12. Sanctions.
On October 18, 2010, Judge Paul Catanese, Chair of the Conference of
Presiding Judges—Municipal Courts, wrote to the Committee asking it to
consider a rule amendment to permit sanctions to be imposed upon a party,
witness or attorney who repeatedly files numerous complaints that plainly do not
meet the probable cause standard. In response, the following new rule was
proposed:
Rule 7:7-12. Sanctions.
If the Court finds that any party, attorney or witness requests frivolous or
not in good faith relief from the Court, it may order any one or more of the
following:
(a) payment by the offending party, attorney or
witness of an amount that the Court shall fix to the
“Treasurer, State of New Jersey” or to any adverse
party;
(b) payment by the offending party, attorney or
witness of the reasonable expenses, including
attorney’s fees, to any aggrieved party;
(c) dismissal of the complaint or motion or the
granting of the motion; or
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(d) such other action as it deems appropriate.
The Committee rejected adoption of this rule, because it thought that there
was a potential that municipal court judges could abuse the power granted by the
proposed rule by imposing unreasonable sanctions. This potential was greater
since the proposed rule set no maximum monetary sanction. The Committee
also thought that sanctioning complainants runs counter to the principle that any
one can file a complaint in municipal court. The Committee feared that this rule
might have a real chilling effect on citizens’ ability to settle their grievances in the
municipal courts.
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IV. MATTERS HELD FOR CONSIDERATION
A. Proposed Amendment to R. 7:7-2. Motions.
A prisoner wrote to Acting Administrative Director Judge Glenn A. Grant
asking for an amendment to R. 7:8-5, so that an incarcerated defendant could
require a municipal court to adjudicate any case on which there is an open
detainer or warrant. Judge Grant referred the letter to the Committee. In
addressing the prisoner’s request, a substantial portion of the Committee thought
there was a need for a rule that would require municipal courts to act upon all
requests for action that were received from inmates.
After many lively discussions, it was proposed that a new subsection (d)
be added to R. 7:7-2:
If the court of jurisdiction receives any written
communication from an incarcerated, unrepresented
defendant either before or after the entry of a guilty
plea or trial seeking relief from the court of any nature,
the written communication shall be deemed to be a
motion. The court shall respond on the record to the
motion seeking relief within 45 days of the receipt of
the motion and shall notify the defendant in writing of
the court’s ruling on the motion. In the event that the
court does not decide within 45 days of the receipt of
the motion (being the written communication), the
motion shall be deemed to be denied.
The Committee could not come to a consensus on this proposed rule.
Those supporting it maintained that many prisoner letters that should be treated
as motions are ignored. Those opposing it argued that this rule would increase
the workload of our already overburdened municipal courts. It was also argued
that the problem should be approached not by a rule change but by training
municipal court judges or offering pro se packets to prisoners, so that they could
file motions in the proper form.
Because the Committee could not agree on this proposal, it was
determined to carry this item to the next term.
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V. CONCLUSION:
The members of the Municipal Court Practice Committee appreciate the
opportunity to serve the Supreme Court in this capacity.
Respectfully submitted:
Roy F. McGeady, P.J.M.C., Chair
Frank J. Zinna, P.J.M.C., Vice-Chair
Mark T. Apostolou, J.M.C.
Mary S. Brennan, J.M.C.
David S. Bunevich, Esq.
Steven P. Burkett, C.J.M.C.
Frank T. Carpenter, P.J.M.C.
Christine Carter, M.D.M.
Gail Connors, CMCA
Annmarie Cozzi, Asst. Prosecutor
Brenda Coppola Cuba, J.M.C.
John Dell’Aquilo, D.A.G.
William Ferreira, Esq.
Arnold N. Fishman, Esq.
Elaine B. Frick, Esq.
Richard A. Gantner, J.M.C.
Jeffrey Evan Gold, Esq.
Bonnie L. Goldman, P.J.M.C.
John Leonard, J.M.C.
Dominick M. Manco, Esq.
Michael Mitzner, Esq.
Richard E.A. Nunes, C.J.M.C.
Scott Pennington, Esq.
Stephen L. Ritz, Esq.
Louis S. Sancinito, Esq.
Cassandra T. Savoy, Esq.
H. Robert Switzer, J.M.C.
James E. Trabilsy, Esq.
Jason Witcher, J.M.C.
Robert T. Zane, P.J.M.C.
William J. Zaorski, D.A.G.
