Saturday, February 21, 2015

Proposed Amendments to R. 7:8-8(a)—Lengthening the Retention Period for Recordings of Court Sessions

Proposed Amendments to R. 7:8-8(a)—Lengthening the Retention Period for Recordings of Court Sessions 
An attorney who frequently practices in municipal court wrote to the Committee asking for a rule change to R. 7:8-8(a) to extend the retention period for sound recordings of court proceedings for longer than the current five years. The attorney stated that many defendants are hampered in obtaining post-conviction relief (PCR) for matters older than five years because they are unable to obtain transcripts from the trial courts. See 7:10-2. He noted that most municipal courts now record sessions digitally on compact disks instead of bulky audio cassette tapes so that limited storage space in municipal courts was not a significant problem, as it had been in the past. 
The Committee recognized that petitions for post-conviction relief (PCR) from convictions that are more than five years old are frequently filed in the municipal courts. Most PCR petitions filed in municipal court for relief from older convictions are filed under State v. Laurick, 120 N.J. 1, cert. denied, 498 U.S. 967 (1990). In Laurick, the Supreme Court held that a conviction resulting from an uncounseled guilty plea to a DWI charge could not be used to enhance the custodial sentence of a subsequent DWI conviction. In a subsequent Appellate Division case, it was held that the five year time limit found in R. 7:10-2(g)(2) and R. 7:10-2(b)(2) for filing Laurick PCR petitions should be liberally relaxed. State v. Bringhurst, 401 N.J. Super. 421, 433 (App. Div. 2008). As a result, it is not unusual to have Laurick PCR petitions filed for relief from convictions that are 15 or 20 years old. 11 

A defendant who is unable to obtain a transcript of a prior DWI proceeding may not be able to successfully obtain relief under Laurick. The procedures for filing a Laurick PCR petition are found in R. 7:10-2(g). That rule states that the moving papers in support of a petition “shall include, if available, records relating to the underlying conviction, including, but not limited to, copies of all . . . transcripts of the defendant’s first appearance, entry of guilty pleas and all other municipal court proceedings related to the conviction sought to be challenged.” R. 7:10-2(g)(3). A defendant bears the burden of establishing by a preponderance of the evidence entitlement to the relief requested in the PCR. State v. Weil, 421 N.J. Super. 121, 131 (App. Div. 2011). Without a transcript of the earlier proceeding, the defendant may not be able to establish that a plea of guilty to a prior DWI charge was uncounseled. See, generally, State v. Weil, supra, 421 N.J. Super. at 131. 
For these reasons, the Committee agreed that it would be a good idea to lengthen the retention period for sound recordings, if it could be done without unduly burdening the municipal courts. The Committee further agreed that the storage of audio tapes for more than five years was unreasonable, because such tapes were bulky and storage of them occupies valuable space in sometimes cramped municipal courts. In contrast, the storage of compact disks for longer periods presents little or no burden. The Committee conducted a survey of the methods by which municipal courts were recording court sessions. According to the survey, only 22 courts, or 4% of municipal courts in the State still use audio cassette tapes to record court proceedings. Of these 22 courts, at least half were in the process of converting to a digital recording system. 12 

The Committee concluded that it was easy and inexpensive for the courts to retain and store compact disks on which court proceedings were recorded for long periods of time. In light of the fact that PCR petitions for relief from 20 year old convictions were regularly brought in the municipal courts, the Committee concluded that it was reasonable to require municipal courts to retain sound recordings for 20 years. Accordingly, the Committee unanimously voted to amend R. 7:8-8(a) to require municipal courts to retain sound recordings of all court proceedings for 20 years. The full text of the recommended rule change follows 
Rule 7:8-8. Record of proceedings; transcripts 

(a) Record. If required by order of the Supreme Court, the municipal court shall cause all proceedings to be recorded by sound recording equipment approved by the Administrative Office of the Courts. If not so required, the court may, at its own expense, cause proceedings to be recorded either by sound recording equipment or by a court reporter. If sound recording equipment is used, or if the proceedings are not otherwise recorded, the court shall permit a record of the proceedings to be made by a certified shorthand reporter at the request and expense of any party. Every sound recording and stenographic record of proceedings made pursuant to this rule shall be retained by the municipal court administrator or by the reporter, as the case may be, for 20 [5] years. 

(b) No change. 

(c) No change. 

(d) No change. 

(e) No change.