7:4-1. Right to Bail Before Conviction

(a) Persons Entitled; Criteria.Every defendant shall have a right to bail before conviction on such terms as, in the judgment of the court, will insure the defendants presence when required, having regard for the defendants background, residence, employment and family status and, particularly, the general policy against unnecessary sureties and detention. In its discretion, the court may order defendants release on defendants own recognizance and may impose terms or conditions appropriate to such release. (b) Domestic Violence; Conditions of Release.When a defendant is charged with a crime or offense involving domestic violence, the court authorizing the release may, as a condition of release, prohibit the defendant from having any contact with the victim. The court may impose any additional limitations upon contact as otherwise authorized by N.J.S.A. 2C:25-26. (c) Issuance of Restraining Orders By Electronic Communication. (1) Temporary Domestic Violence Restraining Orders.Procedures authorizing the issuance of temporary domestic violence restraining orders by electronic communication are governed by R.5:7A (b). (2) N.J.S.A. 2C:35-5.7 and N.J.S.A. 2C:14-12 Restraining Orders.A judge may as a condition of release issue a restraining order pursuant to N.J.S.A. 2C:35-5.7 (Drug Offender Restraining Order Act of 1999) or N.J.S.A. 2C:14-12 (Nicoles Law) upon sworn oral testimony of a law enforcement officer or prosecuting attorney who is not physically present. Such sworn oral testimony may be communicated to the judge by telephone, radio, or other means of electronic communication. The judge shall contemporaneously record such sworn oral testimony by means of a tape-recording device or stenographic machine if such are available; otherwise the judge shall make adequate longhand notes summarizing what is said. Subsequent to taking the oath, the law enforcement officer or prosecuting attorney must identify himself or herself, specify the purpose of the request, and disclose the basis of the application. This sworn testimony shall be deemed to be an affidavit for the purposes of issuance of a restraining order. Upon issuance of the restraining order, the judge shall memorialize the specific terms of the order. That memorialization shall be either by means of a tape-recording device, stenographic machine, or by adequate longhand notes. Thereafter, the judge shall direct the law enforcement officer or prosecuting attorney to memorialize the specific terms authorized by the judge on a form, or other appropriate paper, designated as the restraining order. This order shall be deemed a restraining order for the purpose of N.J.S.A. 2C:35-5.7 (Drug Offender Restraining Order Act of 1999) and N.J.S.A. 2C:14-12 (Nicoles Law). The judge shall direct the law enforcement officer or prosecuting attorney to print the judges name on the restraining order. A copy of the restraining order shall be served on the defendant by any officer authorized by law. Within 48 hours, the law enforcement officer or prosecuting attorney shall deliver to the judge, either in person, by facsimile transmission, or by other means of electronic communication, the signed restraining order along with a certification of service on the defendant. The certification of service shall be in a form approved by the Administrative Director of the Courts and shall include the date and time that service on the defendant was made or attempted to be made.The judge shall verify the accuracy of these documents by affixing his or her signature to the restraining order. (3) Certification of Offense Location for Drug Offender Restraining Orders.When a restraining order is issued by electronic communication pursuant to N.J.S.A. 2C:35-5.7 (Drug Offender Restraining Order Act of 1999) where the law enforcement officer or prosecuting attorney is not physically present at the same location as the court, the law enforcement officer or prosecuting attorney must provide an oral statement describing the location of the offense. Within 48 hours thereafter the law enforcement officer or prosecuting attorney shall deliver to the judge, either in person, by facsimile transmission, or by other means of electronic communication, a certification describing the location of the offense.

7:3-2. Hearing on First Appearance; Right to Counsel

• (a) Hearing on First Appearance.At the defendants first appearance, the judge shall inform the defendant of the charges and shall furnish the defendant with a copy of the complaint or copy of the electronic ATS/ACS record of the complaint, if not previously provided to the defendant. The judge shall also inform the defendant of the range of penal consequences for each offense charged, 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, to have counsel assigned pursuant to paragraph (b) of this rule. The defendant shall be specifically asked whether legal representation is desired and defendants response shall be recorded on the complaint. If the defendant is represented at the first appearance or then affirmatively states the intention to proceed without counsel, the court may, in its discretion, immediately arraign the defendant pursuant to R. 7:6-1.
• (b) Assignment of Counsel.If the defendant asserts indigency but does not affirmatively state an intention to proceed without counsel, the court shall order defendant to complete an appropriate application and other forms prescribed by the Administrative Director of the Courts. Pursuant to law, the judge shall either order defendant to pay any application fee or shall waive its payment. If 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 court shall assign the municipal public defender to represent the defendant. The Guidelines for Determining a Consequence of Magnitude are contained in the Appendix to Part VII of the Rules of Court. The court may, however, excuse the municipal public defender for cause and assign counsel to represent the defendant, without cost to the defendant from, insofar as practicable, a list of attorneys maintained by the Assignment Judge. Assigned counsel shall promptly file an appearance pursuant to R. 7:7-9. The court shall allow the defendant a reasonable time and opportunity to consult trial defense counsel before proceeding further. Assigned counsel shall represent the defendant through trial and, in the event of a conviction, through sentencing, including advising the defendant of the right to appeal. If the defendant elects to appeal, assigned counsel or the municipal public defender shall prepare and file the notice of appeal and an application for the assignment of appellate counsel, but neither assigned counsel nor the municipal public defender shall act as appellate counsel or represent defendant on any subsequent application for post-conviction relief unless specifically so assigned by the court. Assigned counsel shall, however, be responsible for the representation of the defendant on the appeal upon failure to file either the notice of appeal or the application for the assignment of counsel on appeal.

7:2-6. Fax Transmission of Complaint-Warrants

During off-business hours, a law enforcement officer may submit a Complaint-Warrant (CDR-2) and any supporting documentation by facsimile (fax) transmission to the municipal court judge or to the authorized court administrator or deputy court administrator (judicial officer) to obtain a signature if probable cause is found, as follows: (a)A law enforcement officer seeking the issuance of a Complaint-Warrant shall prepare a CDR-2 and contact a judicial officer. (b)The law enforcement officer shall fax the CDR-2 to the judicial officer for a determination of probable cause. The fax machine must be capable of printing on each transmitted document the time and date of the fax transmission. (c)If the judicial officer makes any corrections to the transmitted fax document, the law enforcement officer shall make those corrections on the original document. The officer shall then retransmit the corrected document to the judicial officer for signature. (d)On the next business day, the judicial officer shall conform the original CDR-2 and shall attach the signed fax copy to the original. If the judicial officer who signed the fax copy is the municipal court judge, the original CDR-2 may be signed by the judge or be attested in the judges name and signed by the municipal court administrator

Defective Warrant or Summons; Amendment

No person arrested under a warrant or appearing in response to a summons shall be discharged from custody or dismissed because of any technical insufficiency or irregularity in the warrant or summons, but the warrant or summons may be amended to remedy any such technical defect.

7:2-4. Summons: Execution and Service; Return

• (a) Summons; Personal Service Under R. 4:4-4 or By Ordinary Mail.
  
  • (1)The Complaint-Summons shall be served personally in accordance with R. 4:4-4(a), by ordinary mail or by simultaneous mailing in accordance with paragraph (b) of this rule. Service of the Complaint-Summons by ordinary mail may be attempted by the court, by the law enforcement agency that prepared the complaint or by an agency or individual authorized by law to serve process.
  • (2)Service by ordinary mail shall have the same effect as personal service if the defendant contacts the court orally or in writing in response to or in acknowledgment of the service of the Complaint-Summons. Service by ordinary mail shall not be attempted until a court date for the first appearance has been set by the municipal court administrator, deputy court administrator, or other authorized court employee.
  • (3)If the court is provided with a different, updated address for the defendant, along with a postal verification or other proof satisfactory to the court that the defendant receives mail at that address, service of the Complaint-Summons may be re-attempted.
• (b) Simultaneous Service by Mail.
  
  • (1)If service is attempted by ordinary mail and the defendant does not appear in court on the first appearance date or does not contact the court orally or in writing by that date, the court subsequently shall send the Complaint-Summons simultaneously by ordinary mail and certified mail with return receipt requested to the defendants last known mailing address. Service by simultaneous mailing shall not be attempted until a new court date for the first appearance has been set by the municipal court administrator, deputy court administrator, or other authorized court employee.
  • (2)When the Complaint-Summons is addressed and mailed to the defendant at a place of business or employment with postal instructions to deliver to addressee only, service will be deemed effective only if the signature on the return receipt appears to be that of the defendant to whom the Complaint-Summons was mailed.
  • (3)Consistent with due process of law, service by simultaneous mailing, as provided in Section (b)(1) of this rule, shall constitute effective service unless the mail is returned to the court by the postal service marked Moved, Left No Address, Attempted - Not Known, No Such Number, No Such Street, Insufficient Address, Not Deliverable as Addressed--Unable to Forward or the court has other reason to believe that service was not effected. However, if the certified mail is returned to the court marked Refused or Unclaimed, service is effective providing that the ordinary mail has not been returned.
  • (4)Process served by ordinary or certified mail with return receipt requested may be addressed to a post office box.
• (c) Notice to Prosecuting Attorney and Complaining Witness; Dismissal of Complaint.
  
  • (1)If the court has not obtained effective service over the defendant after attempting service by simultaneous mailing under section (b)(1) of this rule, the court shall provide written notice of that fact to the prosecuting attorney and the complaining witness.
  • (2)The case shall be eligible for dismissal unless within 45 days of the receipt of the written notice, the prosecuting attorney or the complaining witness provides the court with a different, updated address for the defendant, along with a postal verification or other proof satisfactory to the court that the defendant receives mail at that address.
  • (3)Notwithstanding the provisions of this rule, nothing shall preclude the prosecuting attorney or other authorized person from attempting service in any lawful manner.
  • (4)If the prosecuting attorney and complaining witness do not respond to the courts written notice within 45 days or if the defendant is not otherwise served, the court may dismiss the case pursuant to R. 7:8-5.
• (d) Parking Offenses.A copy of the Uniform Traffic Ticket prepared and issued out of the presence of the defendant charging a parking offense may be served by affixing it to the vehicle involved in the violation.
• (e) Corporations, Partnerships and Unincorporated Associations.A copy of the Uniform Traffic Ticket charging a corporation, partnership or unincorporated association with a violation of a statute or ordinance relating to motor vehicles may be served on the operator of the vehicle.
• (f) Return.The law enforcement officer serving a summons shall make return of the summons on or before the return date to the court before whom the summons is returnable.
  
  
  

7:2-3. Arrest Warrant: Execution and Service: Return

(a) By Whom Executed; Territorial Limits.An arrest warrant shall be executed by any officer authorized by law. The arrest warrant may be executed at any place within this State. A law enforcement officer arresting a defendant outside the territorial jurisdiction of the court that issued the warrant shall take the defendant, without unnecessary delay, before the nearest committing judge authorized to admit to bail in accordance with R. 7:4-2(a) and any other applicable rule of court. (b) How Executed.The arrest warrant shall be executed by the arrest of the defendant. The law enforcement officer need not possess the warrant at the time of the arrest, but upon request, the officer shall show the warrant or a copy of an Automated Traffic System/Automated Complaint System (ATS/ACS) electronic record evidencing its issuance to the defendant as soon as possible. If the law enforcement officer does not have the actual warrant to show or does not have access to an ATS/ACS printer to produce a copy of the electronic record at the time of the arrest, the officer shall inform the defendant of the offense charged and that an arrest warrant has been issued. (c) Return.The law enforcement officer executing an arrest warrant shall make prompt return of the arrest warrant to the court that issued the warrant. If the arrested defendant is not admitted to bail, the arresting officer shall notify the court issuing the arrest warrant by telephone or other electronic means of communication of the date and time of the arrest and the place of the defendants incarceration.

7:2-2. Issuance of Arrest Warrant or Summons

• (a) Authorization for Process.
  
  • (1) Citizen Complaint.An arrest warrant or a summons on a complaint charging any offense made by a private citizen may be issued only by a judge or, if authorized by the judge, by a municipal court administrator or deputy court administrator of a court with jurisdiction in the municipality where the offense is alleged to have been committed within the statutory time limitation. The arrest warrant or summons may be issued only if it appears to the judicial officer from the complaint, affidavit, certification or testimony that there is probable cause to believe that an offense was committed, the defendant committed it, and an arrest warrant or summons can be issued. The judicial officers finding of probable cause shall be noted on the face of the summons or warrant and shall be confirmed by the judicial officers signature issuing the arrest warrant or summons. If, however, the municipal court administrator or deputy court administrator finds that no probable cause exists to issue an arrest warrant or summons, or that the applicable statutory time limitation to issue the arrest warrant or summons has expired, that finding shall be reviewed by the judge. A judge finding no probable cause to believe that an offense occurred or that the statutory time limitation to issue an arrest warrant or summons has expired shall dismiss the complaint.
  • (2) Complaint by Law Enforcement Officer or Other Statutorily Authorized Person.A summons on a complaint made by a law enforcement officer charging any offense may be issued by a law enforcement officer or by any person authorized to do so by statute without a finding by a judicial officer of probable cause for issuance. A law enforcement officer may personally serve the summons on the defendant without making a custodial arrest.
  • (3) Complaint by Code Enforcement Officer.A summons on a complaint made by a Code Enforcement Officer charging any offense within the scope of the Code Enforcement Officers authority and territorial jurisdiction may be issued without a finding by a judicial officer of probable cause for issuance. A Code Enforcement Officer may personally serve the summons on the defendant. Otherwise, service shall be in accordance with these rules. For purposes of this rule, a Code Enforcement Officer is a public employee who is responsible for enforcing the provisions of any state, county or municipal law, ordinance or regulation which the public employee is empowered to enforce.
• (b) Determination Whether to Issue a Summons or Warrant.A summons rather than an arrest warrant shall issue if the defendant is a corporation, partnership or unincorporated association. If the defendant is an individual, a summons rather than an arrest warrant shall issue unless the judge or duly authorized municipal court administrator or deputy court administrator finds that:
  
  • (1)the defendant has failed to respond to a summons; or
  • (2)there is reason to believe that the defendant is dangerous to himself or herself, to others, or to property; or
  • (3)there is one or more outstanding arrest warrants for the defendant; or
  • (4)the address of the defendant is not known, and an arrest warrant is necessary to subject the defendant to the jurisdiction of the court; or
  • (5)the defendant cannot be satisfactorily identified; or
  • (6)there is reason to believe that the defendant will not appear in response to a summons.
• (c) Failure to Appear After Summons.If a defendant who has been served with a summons fails to appear on the return date, an arrest warrant may issue pursuant to law and Rule 7:8-9 (Procedures on Failure to Appear). If a corporation, partnership or unincorporated association has been served with a summons and has failed to appear on the return date, the court shall proceed as if the corporation had appeared and entered a plea of not guilty.
• (d) Additional Arrest Warrants or Summonses.More than one arrest warrant or summons may issue on the same complaint.
• (e) Identification Procedures.If a summons has been issued or an arrest warrant executed on a complaint charging either the offense of shoplifting or prostitution or on a complaint charging any non-indictable offense where the identity of the person charged is in question, the defendant shall submit to the identification procedures prescribed by N.J.S.A. 53:1-15. Upon the defendants refusal to submit to any required identification procedures, the court may issue an arrest warrant.