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
Manual.
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
restraining order.
The proposed amendments to R. 3:26-2(a)
follow.
103
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 .
104
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
[M]unicipal [C]ourt.”
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,
which states:
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
105
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
municipal court.”
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
offense.
The proposed amendments to R. 3:5-7
follow.
106
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.
107
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 .
108
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
109
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.
110
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.
111
(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)] (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).
112
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 .
