RULE 3:4. Proceedings Before The Committing Judge;

PRETRIAL RELEASE

3:4-1. Procedure After Arrest

  • (a) Arrest Without Warrant.

    • (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 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) Arrest on Warrant. If bail was not set when the arrest warrant was issued, the person who is arrested on that warrant shall have bail set without unnecessary delay, and no later than 12 hours after arrest.

  • (c) Identification procedures. If the defendant has been released on a summons, any post-arrest identification 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: Source-R.R. 3:2-3(a), 8:3-3(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, 2000.

3:4-2. First Appearance After Filing of Complaint

  • (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 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 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 3:26.

  • (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 Offenses in Municipal Court. If a defendant who is charged with an indictable offense that may be tried in Municipal Court is brought before a 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.

  • (e) Waiver of First Appearance By Written Statement. Unless otherwise ordered by the court, a defendant who is represented by an attorney and is not incarcerated may waive the first appearance by filing, at or before the time fixed for the first appearance, a written statement in a form prescribed by the Administrative Director of the Courts, signed by the attorney, certifying that the defendant has:

    • (1) received a copy of the complaint and has read it or the attorney has read it and explained it to the defendant;

    • (2) understands the substance of the charge;

    • (3) been informed of the right to remain silent and that any statement may be used against the defendant;

    • (4) been informed that there is a pretrial intervention program and where and how an application to it may be made; and

    • (5) been informed of the right to have a hearing as to probable cause, the right to indictment by the grand jury and trial by jury, and if applicable, that the offense charged may be tried by the court upon waiver of indictment and trial by jury, if in writing and signed by the defendant.

    At the time the written statement waiving the first appearance is filed with the court, a copy of that written statement shall be provided to the Criminal Division Manager’s office and to the County Prosecutor or the Attorney General, if the Attorney General is the prosecuting attorney.

Note: Source-R.R. 3:2-3(b), 8:4-2 (second sentence). Amended July 7, 1971 effective September 13, 1971; amended April 1, 1974 effective immediately; text of former Rule 3:4-2 amended and redesignated paragraphs (a) and (b) and text of former Rules 3:27-1 and -2 amended and incorporated into Rule 3:4-2, 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, 2000; new paragraph (e) adopted July 21, 2011 to be effective September 1, 2011.

3:4-3. Hearing as to Probable Cause on Indictable Offenses

  • (a) If the defendant does not waive indictment and trial by jury but does waive a hearing as to probable cause, the court shall forthwith bind the defendant over to await final determination of the cause. If the defendant does not waive a hearing as to probable cause and if before the hearing an indictment has not been returned against the defendant with respect to the offense charged, after notice to the county prosecutor a judge of the Superior Court shall hear the evidence offered by the State within a reasonable time and the defendant may cross-examine witnesses offered by the State. If, from the evidence, it appears to the court that there is probable cause to believe that an offense has been committed and the defendant has committed it, the court shall forthwith bind the defendant over to await final determination of the cause; otherwise, the court shall discharge the defendant from custody if the defendant is detained. Notice to the county prosecutor may be oral or in writing. An entry shall be made on the docket as to when and how such notice was given.

  • (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 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: Source-R.R. 3:2-3(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, 2000; paragraph (a) amended June 15, 2007 to be effective September 1, 2007.

3:4-4. Proceedings in Arrest Under Uniform Fresh Pursuit Law

If an arrest is made in this State by an officer of another state in accordance with the provisions of N.J.S. 2A:155-1 to N.J.S. 2A:155-7, inclusive (Uniform Law on Fresh Pursuit), the officer shall take the arrested person, without unnecessary delay, before the nearest available judge who shall conduct a hearing for the purpose of determining the lawfulness of the arrest. If the judge determines that the arrest was lawful, the judge shall commit the person to await, for a reasonable time, the issuance of an extradition warrant by the Governor of this State, or admit the person to bail for such purpose. If the court determines that the arrest was unlawful it shall discharge the person arrested.

Note: Source-R.R. 3:2-3(d), 8:3-3(d); amended July 13, 1994 to be effective September 1, 1994.

3:4-5. Effect of Technical Insufficiency or Irregularity in the Proceedings

A defendant held in custody under a commitment after a hearing as to probable cause shall not be discharged nor shall such hearing be deemed invalid because of any technical insufficiency or irregularity in the commitment or prior proceedings not prejudicial to the defendant, or because the offense for which the defendant is held to answer is other than that stated in the complaint or arrest warrant.

Note: Source-R.R. 3:2-3(e), 8:3-3(e).
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