3:3-1. Issuance of an Arrest Warrant or Summons. (a) Issuance of a Warrant. An arrest warrant may be issued

Transcription

1 3:3-1. Issuance of an Arrest Warrant or Summons (a) Issuance of a Warrant. An arrest warrant may be issued on a complaint only if: (1) a judge, clerk, deputy clerk, municipal court administrator or deputy municipal court administrator finds from the complaint or an accompanying affidavit or deposition, that there is probable cause to believe that an offense was committed and that the defendant committed it and notes that finding on the warrant; and (2) a judge, clerk, deputy clerk, municipal court administrator or deputy municipal court administrator finds that subsection (c) of this rule allows a warrant rather than a summons to be issued. [(a) Authorization of Process. An arrest warrant on any complaint and a summons on a complaint charging an offense made by a private citizen may be issued only by a judge, clerk or deputy clerk, municipal court administrator or deputy court administrator of a court with jurisdiction in the municipality where the offense is alleged to have - 1 -

2 been committed. The arrest warrant or that summons may be issued only if it appears to the judge, clerk or deputy clerk, municipal court administrator or deputy court administrator from the complaint or an affidavit or deposition that there is probable cause to believe that an offense was committed and that the defendant has committed it. The judge, clerk or deputy clerk, municipal court administrator or deputy court administrator who finds probable cause shall note that finding on the face of the summons or warrant. A summons on a complaint made by a law enforcement officer charging any offense may be issued by a law enforcement officer without a finding by a judicial officer of probable cause for issuance.] (b) Issuance of a summons. A summons may be issued on a complaint only if: (1) a judge, clerk, deputy clerk, municipal court administrator or deputy municipal court administrator finds from the complaint or an accompanying affidavit or deposition, that there is probable cause to believe that an offense was committed and that the defendant committed it and notes that finding on the summons; or - 2 -

3 (2) the law enforcement officer who made the complaint, issues the summons. (c) [(b)] Determination of Whether to Issue a Summons or Warrant. A summons rather than an arrest warrant shall [issue] be issued unless [the judge, clerk or deputy clerk, municipal court administrator or deputy court administrator finds]: (1) the [The] defendant 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, 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; (2) the defendant has been served with a summons and has failed to appear [respond to a summons]; - 3 -

4 (3) there is [The judge, clerk or deputy clerk, municipal court administrator or deputy court administrator has] reason to believe that the defendant is dangerous to self [himself or herself], other persons, [others] or property; (4) there is an outstanding [arrest] warrant for the defendant; (5) the defendant=s identity or address [The address of the defendant] is not known and [an arrest] a warrant is necessary to subject the defendant to the jurisdiction of the court; or (6) [The judge, clerk or deputy clerk, municipal court administrator or deputy court administrator has] there is reason to believe that the defendant will not appear in response to a summons. [A summons rather than an arrest warrant shall issue if the defendant is a corporation.] [(c) Failure to Appear After Summons. If a defendant has been served with a summons and has failed to appear or there is reason to believe that the defendant will fail to appear, an arrest warrant may be issued. If a corporation has been served with a summons and has failed to appear the - 4 -

5 court shall proceed as if the corporation appeared and entered a plea of not guilty.] (d) Finding of No Probable Cause. If a judicial officer finds that there is no probable cause to believe that an offense was committed or that the defendant committed it, the officer shall not issue a warrant or summons on the complaint. If the finding is made by an officer other than a judge, the finding shall be reviewed by a judge. If the judge finds no probable cause, the judge shall dismiss the complaint. (e) [(d)] Additional warrants or summonses. More than one warrant or summons may issue on the same complaint. [(e) Identification Procedures if Summons Issued. If a summons has been issued on a complaint charging a crime or the offense of shoplifting, the defendant shall undergo the identification procedures required after arrest by N.J.S.A. 53:1B15 on the return date of the summons. If the defendant refuses to submit to the identification procedures required by law, the court shall issue an arrest warrant.] - 5 -

6 (f) Process Against Corporations. A summons rather than an arrest warrant shall issue if the defendant is a corporation. If a corporation fails to appear in response to a summons, the court shall proceed as if the corporation appeared and entered a plea of not guilty. [(f) Review of Initial Probable Cause Finding; Dismissal. If a clerk or deputy clerk, municipal court administrator or deputy court administrator finds that no probable cause exists to issue an arrest warrant or summons, that finding shall be reviewed by the judge after notice to the complainant, defendant, and appropriate prosecuting agency. If the judge finds no probable cause, the judge shall dismiss the complaint.] [(g) First Appearance. Following the filing of a complaint and the service of process a first appearance shall be conducted pursuant to Rule 3:4B2 without unnecessary delay. If a defendant remains in custody, the first appearance shall be conducted within 72 hours, excluding holidays, after arrest by a judge with authority to set bail for the charges in the complaint.] - 6 -

7 Note: SourceCR.R. 3:2B2(a)(1)(2)(3) and (4); paragraph (a) amended, new paragraph (b) adopted and former paragraphs (b) and (c) redesignated as (c) and (d) respectively July 21, 1980 to be effective September 8, 1980; paragraph (b) amended and paragraph (e) adopted July 16, 1981 to be effective September 14, 1981; paragraph (b) amended July 22, 1983 to be effective September 12, 1983; caption and paragraph (a) amended and paragraph (f) adopted July 26, 1984 to be effective September 10, 1984; paragraph (b) amended January 5, 1988 to be effective February 1, 1988; captions and text amended to paragraphs (a), (b), (c), (e) and (f), paragraph (g) adopted July 13, 1994, text of paragraph (a) amended December 9, 1994, to be effective January 1, 1995; paragraphs (a), (c), (e), (f), and (g) deleted, paragraph (b) amended and redesignated as paragraph (c), paragraph (d) amended and redesignated as paragraph (e), new paragraphs (a), (b), (d), and (f) adopted July 5, 2000 to be effective September 5,

8 3:4-1. Procedure after Arrest (a) [(b)] Arrest without Warrant. [(1) Preparation of a Complaint and Summons or Warrant. When a law enforcement officer has made an arrest without a warrant, the person arrested shall be taken to the police station where a complaint shall be prepared forthwith. If the complaint charges murder, kidnapping, aggravated manslaughter, manslaughter, robbery, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, second degree aggravated assault, aggravated arson, 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, the complaint shall be prepared on a complaint-warrant (CDRB2) form. If the complaint charges an offense other than those listed, the complaint shall be prepared on a complaint-summons (CDRB1) form unless the law enforcement officer determines that one of the following conditions exists and a warrant is necessary: - 8 -

9 (a) The person has previously failed to respond to a summons; (b) The officer has reason to believe that the person is dangerous to himself or herself, to others or to property; (c) There is one or more outstanding arrest warrants for the person; (d) The prosecution of the offense or offenses for which the person is arrested or the prosecution of any other offense or offenses would be jeopardized by immediate release of the person; (e) The person cannot be satisfactorily identified; or (f) The officer has reason to believe the person will not appear in response to a summons.] [(2) Probable Cause; Issuance of Process; Bail. If a complaint-warrant form (CDRB2) has been prepared, the law enforcement officer shall present the matter to a judge, or in the absence of a judge, a clerk or deputy clerk, municipal court administrator or deputy court administrator who has authority to set bail for the offense charged without unnecessary delay but in no event later than

10 hours after arrest. That judicial officer shall determine whether there is probable cause to believe that the defendant has committed an offense. If the judicial officer finds probable cause to believe that the defendant has committed murder, kidnapping, aggravated manslaughter, manslaughter, robbery, aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, second degree aggravated assault, aggravated arson, 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, a warrant shall be issued and bail set without unnecessary delay but in no event later than 12 hours after arrest. If probable cause for an offense other than one listed is found, a summons or warrant may issue, but if the judicial officer determines that the defendant will appear in response to a summons, a summons shall be issued. If a warrant is issued, bail shall be set without unnecessary delay but in no event later than 12 hours after arrest. The judicial officer who finds probable cause shall note that finding on

11 the face of the summons or warrant. If no probable cause is found, no process shall issue.] [(3) Summons. If a complaint-summons (CDRB1) form has been prepared, or if a judicial officer has determined that a summons issue, after completion of post-arrest identification procedures required by law, the summons shall be served and the defendant released.] (1) Preparation of Complaint. A law enforcement officer shall take a person who was arrested without a warrant to a police station where a complaint shall be prepared immediately. If it appears that issuance of a warrant is authorized by Rule 3:3-1(c) or the prosecution of the person would be jeopardized by immediate release, the complaint may be prepared on a Complaint-Warrant (CDR2) form. Otherwise, the complaint shall be prepared on a Complaint-Summons (CDR1) form. (2) Issuance of Process. If a Complaint-Summons (CDR1) has been prepared, the law enforcement officer may serve the summons and release the defendant. If a Complaint- Warrant (CDR2) has been prepared, without unnecessary

12 delay, and no later than 12 hours after arrest, the matter shall be presented to a judge, or, in the absence of a judge, to a judicial officer who has the authority to set bail for the offense charged. The judicial officer shall determine whether to issue a warrant or summons as provided in Rule 3:3-1, and if a warrant is issued, shall set bail immediately. (b) [(a)] Arrest on a Warrant. If bail was not set when the arrest warrant [on a complaint] was issued, a person arrested on a [the] warrant shall have bail set without unnecessary delay, and no [but in no event] later than 12 hours after arrest. [(c) First Appearance. Following the filing of a complaint the defendant shall be brought, without unnecessary delay, before the court for a first appearance pursuant to Rule 3:4B2. If the defendant remains in custody, the first appearance shall be conducted within 72 hours, excluding holidays, after arrest by a judge with authority to set bail for the charges in the complaint.] (c) Identification procedures. If the defendant has been released on a summons, any post-arrest identification

13 procedures required by N.J.S.A 53:1-15 or otherwise required by law, shall be completed on the return date of the summons. Note: SourceCR.R. 3:2B3(a), 8:3B3(a). Amended July 7, 1971 to be effective September 13, 1971; caption amended, former rule redesignated as paragraph (a) and paragraphs (b) and (c) adopted July 21, 1980 to be effective September 8, 1980; paragraph (b) amended July 16, 1981 to be effective September 14, 1981; paragraphs (a) and (b) amended, new paragraph (c) adopted and former paragraph (c) redesignated paragraph (d) and paragraph (d)(7) deleted November 5, 1986 to be effective January 1, 1987; paragraphs (b) and (c) amended April 10, 1987 to be effective immediately; paragraph (b) amended January 5, 1988 to be effective February 1, 1988; captions added to paragraphs (a)(b) and (c), new paragraph (c) adopted, paragraph (d) introductory text deleted and paragraphs (d)(1)(2)(3)(4)(5) and (6) redesignated as paragraphs (b)(1)(a)(b)(c)(d) and (f) and paragraph (1)(e) amended and paragraphs (b)(2) and (3) adopted, July 13, 1994 to be effective January 1, 1995; paragraph (a) amended and redesignated as paragraph (b), paragraph (b) amended and redesignated as paragraph (a), paragraph (c) deleted, and new paragraph (c) adopted July 5, 2000 to be effective September 5,

14 3:4-2. First Appearance [Procedure] After Filing Complaint [(a) Indictable Offenses. At the defendant's first appearance before the court following the filing of a complaint, the judge of the court shall inform the defendant of the charges and, shall furnish the defendant with a copy thereof. The judge shall also inform the defendant of the right to remain silent and that any statement made may be used against the defendant. The judge shall also inform the defendant of the existence of the pretrial intervention program, and where and how the application may be made. The judge shall also inform the defendant of the right to retain counsel or, if indigent the right to be represented by the Public Defender. The judge shall specifically ask the defendant whether he or she wants counsel and the defendant's response shall be recorded on the complaint. If the defendant asserts indigence, unless the defendant affirmatively and with understanding of the waiver of the right states the intention to proceed without counsel, the judge shall insure that the appropriate form as prescribed by the Administrative Director of the Courts, is completed and

15 filed with the criminal division manager's office. Indigence shall be determined by the criminal division manager's office. If qualified, the defendant shall be referred to the Office of the Public Defender no later than the prearraignment interview. Defense counsel shall promptly file an appearance pursuant to R. 3:8. The representation of the defendant by the Office of the Public Defender shall continue through and include any direct appeal from conviction and such post-conviction proceedings or appeal therein as would warrant the assignment of counsel pursuant to court rules. The court shall inform the defendant of his or her right to have a hearing as to probable cause and of his or her right to indictment by the grand jury and trial by jury, and if the offense charged may be tried by the court upon waiver of indictment and trial by jury, the court shall so inform the defendant. All such waivers shall be in writing, signed by the defendant, and shal be filed and entered on the docket. If the complaint charges an indictable offense which cannot be tried by the court on waiver, it shall not ask for or accept a plea to the offense. The court shall admit the defendant to bail as provided in R. 3:26.]

16 [(b) Non-indictable Complaints. At the defendant's first appearance before the court following the filing of a complaint, the judge thereof shall inform the defendant of the charges and, shall furnish the defendant with a copy thereof. The judge shall also inform the defendant of the right to remain silent and that any statement made may be used against the defendant. The judge shall inform the defendant of the right to retain counsel or, if indigent and constitutionally or otherwise entitled by law to counsel, of the right to be represented by assigned counsel. The judge shall specifically ask the defendant whether he or she wants counsel and the defendant's response shall be recorded on the complaint. If the court is satisfied that the defendant is indigent and that the defendant is constitutionally or otherwise entitled by law to have counsel furnished, the court shall assign counsel to represent the defendant. Such assignment shall, so far as practicable, be made either in rotation from a list of available counsel established and maintained at the direction of the Assignment Judge or under such other system as shall have

17 been established by the Assignment Judge. Counsel so assigned shall promptly file an appearance. The representation of the defendant by counsel so assigned shall continue through trial and, in the event of a conviction, shall continue through sentencing and shall include advising the defendant with respect to the right to appeal, and, if the defendant desires to appeal, the preparation and filing of the notice of appeal and of an application for the assignment of counsel on appeal, but shall not include representation thereafter on such appeal or on any subsequent application for post-conviction relief unless further assigned. Counsel shall, however, be responsible for prosecution of the appeal if counsel fails to file with the notice of appeal an application for the assignment of counsel on appeal. The court shall allow the defendant a reasonable time and opportunity to consult counsel before proceeding further. The court shall admit the defendant to bail as provided in R. 3:26.] (a) Time of First Appearance. Without unnecessary delay, following the filing of a complaint the defendant shall be brought before a judge for a first appearance as

18 provided in this Rule. If the defendant remains in custody, the first appearance shall occur within 72 hours after arrest, excluding holidays, and shall be before a judge with authority to set bail for the offenses charged. (b) Procedure in Indictable Offenses. At the defendant=s first appearance before a judge, if the defendant is charged with an indictable offense, the judge shall: (1) give the defendant a copy of the complaint and inform the defendant of the charge; (2) inform the defendant of the right to remain silent and that any statement may be used against the defendant; (3) inform the defendant of the right to retain counsel and, if indigent, the right to be represented by the public defender; (4) ask the defendant specifically whether he or she wants counsel and record the defendant=s answer on the complaint; (5) if the defendant asserts indigence, and does not affirmatively, and with understanding, waive the right to counsel, assure that the defendant completes the

19 appropriate application form for public defender services and files it with the criminal division manager=s office. (6) inform the defendant that there is a pretrial intervention program and where and how an application to it may be made; (7) inform the defendant of his or her right to have a hearing as to probable cause and of his or her right to indictment by the grand jury and trial by jury, and if the offense charged may be tried by the court upon waiver of indictment and trial by jury, the court shall so inform the defendant. All such waivers shall be in writing, signed by the defendant, and shall be filed and entered on the docket. If the complaint charges an indictable offense which cannot be tried by the court on waiver, it shall not ask for or accept a plea to the offense; and, (8) admit the defendant to bail as provided in Rule 3:

20 (c) Procedure in Non-Indictable Offenses. At the defendant=s first appearance before a judge, if the defendant is charged with an non-indictable offense, the judge shall: (1) give the defendant a copy of the complaint and inform the defendant of the charge; (2) inform the defendant of the right to remain silent and that any statement may be used against the defendant; (3) inform the defendant of the right to retain counsel and, if indigent and entitled by law to the appointment of counsel, the right to be represented by a public defender or assigned counsel; and (4) assign counsel, if the defendant is indigent and entitled by law to the appointment of counsel, and does not affirmatively, and with understanding, waive the right to counsel. (d) Trial of Indictable in Municipal Court. If a defendant who is charged with an indictable offense that may be tried in Municipal Court is brought before a

21 Municipal Court, that court may try the matter provided that the defendant waives the rights to indictment and trial by jury. The waivers shall be in writing, signed by the defendant, and approved by the county prosecutor, and retained by the Municipal Court. Note: SourceCR.R. 3:2B3(b), 8:4B2 (second sentence). Amended July 7, 1971 effective September 13, 1971; amended April 1, 1974 effective immediately; text of former Rule 3:4B2 amended and redesignated paragraphs (a) and (b) and text of former Rules 3:27B1 and B2 amended and incorporated into Rule 3:4B2, July 13, 1994 to be effective January 1, 1995; paragraphs (a) and (b) amended June 28, 1996 to be effective September 1, 1996; paragraph (b) amended January 5, 1998 to be effective February 1, 1998; caption amended, paragraphs (a) and (b) deleted, new paragraphs (a), (b), (c), and (d) adopted July 5, 2000 to be effective September 5,

22 3:4B3. Hearing as to Probable Cause on Indictable Offenses (a)... no change (b) After concluding the proceeding the court shall transmit, forthwith, to the county prosecutor all papers in the cause. Whether or not the court finds probable cause, it shall continue in effect any bail previously posted in accordance with R. 3:26 or any other condition of pretrial release not involving restraints on liberty; and any bail taken by the court shall be transmitted to the [county clerk] financial division manager=s office. If the defendant is discharged for lack of probable cause and an indictment is not returned within 120 days, the bail shall thereafter be returned and conditions of pretrial release, if any, terminated. Note: SourceCR.R. 3:2B3(c). Paragraph designations added and paragraphs (a) and (b) amended July 16, 1979 to be effective September 10, 1979; paragraph (a) amended July 13, 1994 to be effective September 1, 1994; paragraph (b) amended July 5, 2000 to be effective September 5,

23 3:6B6. Who May Be Present; Record and Transcript (a)... no change (b)... no change (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 [county clerk] operations division manager=s office who shall retain it subject to the directions of the Administrative Director of the Courts. Note: SourceCR.R. 3:3B6(a)(b)(c); paragraphs (a) and (b) amended July 15, 1982 to be effective September 13, 1982; paragraph (b) amended and second paragraph added to paragraph (b) July 13, 1994, new text in paragraph (b) amended December 9, 1994, to be effective January 1, 1995; paragraph (c) amended July 5, 2000 to be effective September 5,

24 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, postconviction proceedings for which the Rules of Court provide assigned counsel, and appeals from those proceedings. Note: Adopted July 5, 2000 to be effective September 5,

25 3:9-3. Plea Discussions; Agreements; Withdrawals (a)... no change (b)... no change (c)... no change (d)... no change (e)... no change (f)... no change (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. Note: Adopted July 17, 1975 to be effective September 8, Paragraph (d) adopted July 29, 1977 to be effective September 6, 1977; paragraph (d) redesignated as (e); paragraph (f) adopted July 21, 1980 to be effective September 8, 1980; paragraphs (b), (c) and (e) and captions for paragraphs (b) and (c) amended May 23, 1989 to be effective June 15, 1989; paragraph (d) amended June 29, 1990 to be effective September 4, 1990; paragraphs (a) and (f) amended, paragraph (g) adopted July 13, 1994 to be effective January 1, 1995; caption to paragraph (g) amended July 5, 2000 to be effective September 5,

26 3:21B4. Sentence (a)... no change (b)... no change (c)... no change (d)... no change (e)... no change (f)... no change (g)... no change (h)... no change (i)... no change (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 upon by the defendant for purposes of proceedings before the Parole Board or any direct or collateral appeal

27 [The judge's statement, to be given after pronouncing the sentence, shall include the following: "The purpose of this statement is to inform the public of the actual period of time this defendant is likely to spend in jail or prison as a result of this sentence. That actual period of jail or prison time is not determined by this judge, but by the statutes of New Jersey as applied to this sentence by the State Parole Board. In this case, that period of estimated actual custody is at least ( ) years and ( ) months, according to the State Parole Board's published AParole Eligibility Tables.@ It is an approximate estimate. The estimate assumes defendant will get full credit for good time, work time, and minimum custody time, all of those credits being provided for by New Jersey statute; if defendant does not get those credits, the time served will be longer. Furthermore if at defendant's parole eligibility date the Parole Board determines there is a substantial likelihood defendant will commit a crime if released, parole will be denied at that time. Presently, more than 40% of defendants are not

28 released by the Parole Board at the time estimated in this statement, often serving another year or more. The actual calculation can be complex, but for the majority of defendants the total real time that is served for this sentence is approximately what I have stated, namely ( ) years and ( ) months. This defendant has already served ( ) months of that time. Defendant should not rely at all on this estimate, and in particular cannot rely on it on appeal. It is intended solely to inform the public." (The judge's statement shall give the estimated real time found in the Tables without subtracting the jail credits which are set forth separately near the end of the statement.) If the likely period of incarceration is not covered by the State Parole Board's "Parole Eligibility Tables" and if it is affected by various complexities (e.g., sentencing aggregation, gap time, consecutive sentencing, repetitive compulsive sex offenders, relationship to out-of-state sentences), the judge shall so state and explain, giving an approximate estimate of real time if possible, again making it clear that the information is intended for the public

29 and is not to be relied on by defendant. If the sentence includes a parole ineligibility term the judge shall omit the sentence in the statement that refers to "full credit for good time, work time, and minimum custody time," and shall omit the word "furthermore" from the subsequent sentence in the statement. If the judge concludes that defendant's entrance into the Intensive Supervision Program is a realistic possibility, the judge shall note that possibility.] Note: SourceCR.R. 3:7B10(d). Paragraph (f) amended September 13, 1971; paragraph (c) deleted and paragraphs (d), (e) and (f) redesignated (c), (d) and (e) July 14, 1972 to be effective September 5, 1972; paragraph (e) adopted and former paragraph (e) redesignated as (f) August 27, 1974 to be effective September 9, 1974; paragraph (b) amended July 17, 1975 to be effective September 8, 1975; paragraphs (d) and (e) amended August 28, 1979 to be effective September 1, 1979; paragraph (d) amended December 26, 1979 to be effective January 1, 1980; paragraph (g) adopted July 26, 1984 to be effective September 10, 1984; paragraph (d) caption and text amended November 5, 1986 to be effective January 1, 1987; paragraph (d) amended November 2, 1987 to be effective January 1, 1988; paragraph (d) amended January 5, 1988 to be effective February 1, 1988; new paragraph (c) adopted and former paragraphs (c), (d), (e), (f), and (g) redesignated (d), (e), (f), (g), and (h) respectively June 29, 1990 to be effective September 4, 1990; paragraph (b) amended July 14, 1992 to be effective September 1, 1992; new paragraph (i) adopted April 21, 1994 to be effective June 1, 1994; paragraphs (b), (e), (f) and (g) amended July 13, 1994 to be effective January 1, 1995; former paragraphs (f), (g), (h), and (i) redesignated as

30 paragraphs (g), (h), (i), and (j) and new paragraph (f) adopted July 10, 1998 to be effective September 1, 1998; paragraph (j) amended July 5, 2000 to be effective September 5,

31 3:22B1. Petition for Relief Any person convicted of a crime may, pursuant to this rule, file with the [county clerk] 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. Note: SourceCR.R. 3:10AB1; amended July 5, 2000 to be effective September 5,

32 3:23-2. Appeal; How Taken; Time The defendant, a defendant's legal representative or other person aggrieved by a judgment of conviction (including a judgment imposing a suspended sentence) 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 5 days after the filing of the notice of appeal, one copy thereof shall be served upon the prosecuting attorney, as hereinafter defined, and one copy thereof shall be filed with the [county clerk] 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 upon 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. Note: SourceCR.R. 1:3B1(c), 1:27B(d), 3:10B2, 3:10B5. Amended November 22, 1978 to be effective December 7, 1978; amended July 11, 1979 to be effective September 10, 1979; amended November 5, 1986 to be effective January 1, 1987; amended July 13, 1994 to be effective September 1, 1994; amended July 5, 2000 to be effective September 5,

33 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 [county clerk] 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 [county clerk] criminal division manager=s office shall deliver copies thereof to the prosecuting 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 [county clerk] criminal division manager=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

34 Note: SourceCR.R. 3:10B4. Caption amended November 22, 1978 to be effective December 7, 1978; paragraphs (a) and (b) amended July 13, 1994 to be effective September 1, 1994; paragraphs (a) and (b) amended July 5, 2000 to be effective September 5,

35 3:23B6. Transmittal of Recognizance or Cash Deposit The judge or clerk of the court below shall transmit to the [county clerk] financial division manager=s office any recognizance taken in accordance herewith or cash deposited in lieu of such recognizance. Note: SourceCR.R. 3:10B7; amended July 13, 1994 to be effective September 1, 1994; amended July 5, 2000 to be effective September 5,

36 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. 7:8B8 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 [county clerk] 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 may also supplement the record and admit additional testimony whenever (1) the

37 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)... no change (c)... no change (d)... no change (e)... no change (f)... no change Note: SourceCR.R. 3:10B13. Paragraph (b) amended by order of September 5, 1969 effective September 8, 1969;

38 paragraph (a) amended June 29, 1973 to be effective September 10, 1973; paragraph (a) amended July 29, 1977 to be effective September 6, 1977; paragraphs (a), (b) and (e) amended November 22, 1978 to be effective December 7, 1978; paragraphs (a), (b) and (e) amended July 11, 1979 to be effective September 10, 1979; paragraph (a) amended February, 1983 to be effective immediately; paragraph (a) amended January 5, 1998 to be effective February 1, 1998; paragraph (a) amended July 5, 2000 to be effective September 5,