RULE 3:10. Pleadings And Motions Before Trial
DEFENSES AND OBJECTIONS
3:10-1. Pleadings and Motions
Pleadings in criminal actions shall consist only of the complaint, the indictment or accusation, and the plea. Any defense or objection capable of determination without trial of the general issue may be raised before trial by motion to dismiss or for other appropriate relief.
Note: Source-R.R. 3:5-5(a)(b)(1).
3:10-2. Time and Manner of Making Motion; Hearing on Motion
(a) Time and Manner of Making Motion. Unless otherwise required by law, pre-indictment motions shall be heard by the judge to whom the case is assigned. If the case has not been assigned to a judge pre-indictment motions shall be made to the Criminal Presiding Judge or designee, except as otherwise provided by law. Unless otherwise required by law, or ordered by the Criminal Presiding Judge, post-indictment motions shall be made to the judge to whom the indictment has been assigned. At the arraignment/status conference counsel shall advise the court of their intention to make motions. The dates for filing, briefing and for the hearing of such motions shall be set by the court at the arraignment/status conference. Unless otherwise ordered by the court, motions and status conferences shall be scheduled on the same day. The court may for good cause shown and in the interest of justice permit additional motions to be made thereafter. A motion shall include all defenses and objections then available to the defendant.
(b) Hearing on Motion. A motion made before trial shall be determined before the trial memorandum is prepared and the trial date fixed, unless the court, for good cause, orders it deferred for determination at or after trial.
(c) Defenses and Objections Which Must Be Raised Before Trial. The defense of double jeopardy and all other defenses and objections based on defects in the institution of the prosecution or in the indictment or accusation, except as otherwise provided by R. 3:10-2(d) (defenses which may be raised only before or after trial) and R. 3:10-2(e) (lack of jurisdiction), must be raised by motion before trial. Failure to so present any such defense constitutes a waiver thereof, but the court for good cause shown may grant relief from the waiver.
(d) Defenses and Objections Which May Only Be Raised Before or After Trial. The defense that the indictment or accusation fails to charge an offense and the defense that the charge is based on a statute or regulation promulgated pursuant to statute which is unconstitutional or invalid in whole or in part may only be raised by motion either before trial or within 10 days after a verdict of guilty or within such further time as the court may fix during such 10-day period, or on appeal. Such defenses shall not be considered during trial.
(e) Lack of Jurisdiction. The court shall notice the defense of lack of jurisdiction in the court at any time during the pendency of the proceeding except during trial.
Note: Source-R.R. 3:5-5(b)(2)(3) and (4); caption amended, former Rules 3:10-2, -3, -4, -5 and -6 amended, redesignated and incorporated into R. 3:10-2 as paragraphs (c), (d), (e), (a), and (b) July 13, 1994 to be effective January 1, 1995.
Note: Source-R.R. 3:5-5(b)(2) (first sentence); former R. 3:10-3 redesignated R. 3:10-2(d)July 13, 1994 to be effective January 1, 1995.
Note: Source-R.R. 3:5-5(b)(2) (fifth sentence); former R. 3:10-4 redesignated R. 3:10-2(e) July 13, 1994 to be effective January 1, 1995.
Note: Source-R.R. 3:5-5(b)(2) (third sentence), 3:5-5(b)(3); former R. 3:10-5 amended and redesignated R. 3:10-2(a) July 13, 1994 to be effective January 1, 1995.
Note: Source-R.R. 3:5-5(b)(4); former R. 3:10-6 amended and redesignated R. 3:10-2(b) July 13, 1994 to be effective January 1, 1995.
3:10-7. Effect of Determination of Motion
Except as provided in R. 3:9-3(f), if a motion is determined adversely to the defendant, the defendant shall be permitted to plead if the defendant has not previously pleaded but a plea previously entered shall stand. If an objection or defense specified in R. 3:10-2 is sustained and is not otherwise remediable the court shall order the indictment or accusation dismissed. If the court grants a motion to dismiss an indictment or accusation, it may also order that the defendant be held in custody or that bail be continued for a specified time pending the filing of a new indictment or accusation.