Proposed Amendments to R. 3:26-2 – Authority to Set Bail for Contempt for
Violating a Domestic Violence Restraining Order
R. 3:26-2(a) provides that only a Superior Court judge can set bail for certain
crimes and offenses, including bail for a person charged with contempt under N.J.S.A.
2C:29-9b for violating a domestic violence restraining order. This language was adopted
based upon a recommendation in the Committee’s 1992-1994 report to add contempt
charges as a class of cases for which only a Superior Court judge may set bail. Currently,
the Domestic Violence Procedures Manual provides that if the contempt charge has been
initially screened as a disorderly persons offense, as opposed to a fourth-degree crime,
bail may be set by a Municipal Court judge if the Assignment Judge in that vicinage has
issued a directive or an order allowing this practice. The Committee considered this
conflict between the language in R. 3:26-2(a) and the Domestic Violence Procedures
The Committee recommends amending R. 3:26-2(a) to clarify that only a Superior
Court judge is authorized to set bail for a defendant arrested for fourth-degree contempt
pursuant to N.J.S.A. 2C:29-9(b) for violating a domestic violence restraining order.
Thus, a Municipal Court judge would be authorized to set bail for a non-indictable
contempt offense in violation of N.J.S.A. 2C:29-9(b) for violating a domestic violence
The proposed amendments to R. 3:26-2(a) follow.
3:26-2. Authority to Set Bail
(a) Authority to Set Initial Bail. A Superior Court judge may set bail for a person charged
with any offense. Bail for any offense except murder, kidnapping, manslaughter,
aggravated manslaughter, aggravated sexual assault, sexual assault, aggravated criminal
sexual contact, a person arrested in any extradition proceeding or a person arrested for a
fourth-degree contempt offense under N.J.S.A. 2C:29-9(b) for violating a domestic
violence restraining order may be set by any other judge, or in the absence of a judge, by
a municipal court administrator or deputy court administrator.
(b) . . . no change.
(c) . . . no change.
(d) . . . no change.
Source-R.R. 3:9-3(a) (b) (c); amended July 24, 1978 to be effective September 11, 1978;
amended May 21, 1979 to be effective June 1, 1979; amended August 28, 1979 to be
effective September 1, 1979; amended July 26, 1984 to be effective September 10, 1984;
caption amended, former text amended and redesignated paragraph (a) and new
paragraphs (b), (c) and (d) adopted July 13, 1994 to be effective January 1, 1995;
paragraph (b) amended January 5, 1998 to be effective February 1, 1998; paragraph (d)
amended July 9, 2013 to be effective September 1, 2013[.]; paragraph (a) amended to
be effective .
C. Proposed Revisions to R. 3:5-7(a) – Referral from the Municipal Court
Practice Committee - Conforming Amendments For Motions to Suppress
The Municipal Court Practice Committee asked the Committee to consider
amending R. 3:5-7, which governs motions to suppress, to be consistent with
amendments being proposed by the Municipal Court Practice Committee to R. 7:5-2 and
new R. 7:5-4. According to the referral, the revision to R. 7:5-2 would “permit
[M]unicipal [C]ourt judges to hear motions to suppress evidence not only obtained as a
result of warrantless searches, but also evidence obtained as result of search warrants
where the charges resulting are returnable in [M]unicipal [C]ourt.” New R. 7:5-4 would
clarify “as to where a motion to suppress evidence obtained as a result of a Dyal
subpoena would be heard. The [Municipal Court Practice] Committee concluded that if
the matters were returnable in [M]unicipal [C]ourt that the motion would also be heard in
With respect to the referral, the Criminal Practice Committee reviewed the scope
of the Part III rules. Specifically, the Committee reviewed the language in R. 3:1-1,
The rules in Part III govern the practice and procedure in all
indictable and non-indictable proceedings in the Superior
Court Law Division, and, insofar as they are applicable, the
practice and procedure on indictable offenses in all other
courts, including the municipal courts, and the practice and
procedure in juvenile delinquency proceedings in the
Chancery Division, Family Part except as otherwise provided
for in Part V.
Regarding jurisdiction for motions to suppress evidence, currently R. 3:5-7(a) provides
that a person “may apply to the Superior Court only and in the county in which the matter
is pending or threatened to suppress the evidence and for the return of the property seized
even though the offense charged or to be charged may be within the jurisdiction of a
The Committee was unaware of any reasons why a Municipal Court judge who
issues a search warrant in a non-indictable matter cannot handle a motion to suppress for
that matter when it is returnable to the Municipal Court. The Committee noted that the
Municipal Court Practice Committee’s proposal only addresses procedures for Municipal
Court judges to handle motions to suppress. The proposed amendments do not authorize
Municipal Court judges to issue search warrants. Therefore, it was the understanding of
the Committee that the proposed amendments to R. 7:5-2 and new R. 7:5-4 would not
affect the practice in those vicinages where Municipal Court judges are not authorized by
the Assignment Judge to issue search warrants.
Based upon this discussion, the Committee agreed to recommend adoption of
conforming amendments to R. 3:5-7(a) if the Court adopts the revisions to R. 7:5-2 and
new R. 7:5-4 as being recommended by the Municipal Court Practice Committee. The
Committee agreed that R. 3:5-7 should be amended to provide that a motion to suppress
evidence should be filed in the Superior Court (1) when an indictable crime charged or to
be charged falls within the jurisdiction of the Superior Court, or (2) when a Superior
Court judge issued the search warrant, even if the offense charged is a non-indictable
The proposed amendments to R. 3:5-7 follow.
3:5-7. Motion to suppress evidence and for return of property
(a) Notice; Time. On notice to the prosecutor of the county in which the matter is pending
or threatened, to the applicant for the warrant if the search was with a warrant, and to coindictees,
if any, and in accordance with the applicable provisions of R. 1:6-3 and R.
3:10, a person claiming to be aggrieved by an unlawful search and seizure and having
reasonable grounds to believe that the evidence obtained may be used against him or her
in a penal proceeding, may apply to the Superior Court [only and] in the county in which
the matter is pending or threatened to suppress the evidence and for the return of the
property seized (1) without a warrant if the matter involves an indictable crime or (2)
where the search warrant was issued by a Superior Court judge, even though the offense
charged or to be charged may be within the jurisdiction of a municipal court. [Such] A
motion filed in the Superior Court shall be made pursuant to R. 3:10-2. When an offense
charged or to be charged is within the jurisdiction of the municipal court, a motion to
suppress evidence resulting from a search warrant issued by a municipal court judge or
seized without a warrant shall be filed pursuant to R. 7:5-2.
(b) Briefs. . . . no change.
(c) Hearing. . . . no change.
(d) Appellate Review. . . . no change.
(e) Return of Property. . . . no change.
(f) Consequences of Failure to Move. . . . no change.
(g) Effect of Irregularity in Warrant. . . . no change.
Source-R.R. 3:2A-6(a)(b). Paragraph (a) amended, paragraphs (b), (c), (d) adopted and
former paragraphs (b), (c), (d) redesignated as (e), (f), (g) respectively January 28, 1977
to be effective immediately; paragraphs (a) and (c) amended July 16, 1979 to be effective
September 10, 1979; paragraph (a) amended July 16, 1981 to be effective September 14,
1981; paragraph (a) amended June 9, 1989 to be effective June 19, 1989; paragraph (a)
amended July 13, 1994 to be effective January 1, 1995; paragraph (a) amended January 5,
1998 to be effective February 1, 1998[.]; paragraph (a) amended to be effective .
D. Proposed Amendments to R. 3:14-1 – Updates to the Venue Rule
Last term, the Committee recommended proposed revisions to the venue rule to
restructure the rule and update obsolete provisions. This term, upon referral by the
Supreme Court, the Committee prepared revised amendments to update the language of
R. 3:14-1 while maintaining the same structure as the current rule.
Subsections (e) and (f) have been recommended for deletion because the crimes
covered by those subsections no longer exist. Current paragraph (e) addresses venue for
treason. The treason statute, N.J.S.A. 2A:148-1 to -22.1 was repealed by L. 1978, c. 95
(eff. Sept. 1, 1979). Current paragraph (f) addresses venue for libel. The libel statute,
N.J.S.A. 2A:120-1 was repealed by L. 1978, c. 95 (eff. Sept. 1, 1979). Subsection (g) has
been redesignated as subsection (e) with no changes to the text of the Rule. Subsections
(h), (i) and (j) have been redesignated as subsections (f), (g), (h), respectfully, and are
recommended for amendment to reflect changes in nomenclature. The crime covered in
new subsection (f) is now described as “receiving stolen property” and it does not
distinguish between property stolen in or outside the state. The changes in new
subsection (g) reflect the change in nomenclature from “embezzlement, conversion or
misappropriation” to the current terms, “theft by deception, and theft by unlawful
disposition.” The reference to “fraud” has been added because that crime seems similar
to the others in terms of defining its location. The change in new subsection (h) reflects
the abolition of the crime of “desertion.” The desertion statute, N.J.S.A. 2A:100-1 to -8
was repealed by L. 1978, c. 95 (eff. Sept. 1. 1979). Its closest equivalent, “nonsupport”
pursuant to (N.J.S.A. 2C:24-5) has been substituted. New subsection (h) is also being
revised to update the reference from “wife” to “spouse” and to include “statutory partner”
in recognition of the rights of civil partners. Subsection (k) is being redesignated as
subsection (i) with no changes to the text of the Rule.
The Committee also considered whether to incorporate language from N.J.S.A.
2C:1-3(g) to address jurisdiction over crimes occurring wholly outside the state if the
victim was in this state. The main focus of the statute was to address computer crimes
and identity theft and nothing in the venue rule now provides for these cases. The
proposed paragraph provided: “(l) Offenses occurring wholly outside the state by nonresidents
of the state may be prosecuted in the county where the victim resides.” The
Committee considered this language, however, determined that it did not need to be
included in the rule.
The proposed amendments to R. 3:14-1 follow.
An offense shall be prosecuted in the county in which it was committed, except
(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
(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
[(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
(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
[(g)] (e) 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)] (f) 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,]
charged with receiving stolen property may be prosecuted in any county [into or through]
in which the stolen property is [brought] possessed.
[(i)] (g) Prosecutions for acts of forgery, [embezzlement, conversion or
misappropriation] fraud, theft by deception, or theft by unlawful disposition may be had
either in the county in which such offense was committed or in the county in which the
offender last resided.
[(j)] (h) Prosecutions for [desertion] nonsupport may be had either in the county in
which the [wife] spouse, statutory partner or any child resided at the time of the
[desertion] nonsupport or in the county in which the [wife] spouse or statutory partner
resides when the prosecution is begun.
[(k)] (i) 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).
History: Source-R.R. 3:6-1; paragraph (k) adopted July 17, 1975 to be effective
September 8, 1975; paragraph (g) amended July 13, 1994 to be effective September 1,
1994[.]; paragraphs (e) and (f) text deleted; paragraph (g) redesignated as paragraph (e);
paragraph (h) amended and redesignated as paragraph (f); paragraph (i) amended and
redesignated as paragraph (g); paragraph (j) amended and redesignated as paragraph (h);
and paragraph (k) redesignated as paragraph (i) to be effective .