(a) Time of First Appearance. Following the filing of a complaint the defendant shall be brought before a judge for a first appearance as provided in this Rule.
(1) If the defendant remains in custody, the first appearance shall occur within 48 hours of a defendant’s commitment to the county jail, and shall be before a judge with authority to set conditions of release for the offenses charged. However, if a motion for pretrial detention is filed at or prior to the first appearance for a person charged with homicide, the judge designated to preside over the centralized first appearance may conduct that proceeding in accordance with this Rule, except that conditions of pretrial release shall not be set.
(2) If a defendant is released on a complaint-summons, the first appearance shall be held no more than 60 days after the issuance of the complaint-summons or the defendant's arrest.
(b) First Appearance; Where Held. All first appearances for indictable offenses shall occur at a centralized location and before a judge designated by the Chief Justice. If the defendant is unrepresented at the first appearance, the court is authorized to assign the Office of the Public Defender to represent the defendant for purposes of the first appearance.
(c) 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, discovery as provided in subsections (A) and (B) below, and inform the defendant of the charge;
(A) if the prosecutor is not seeking pretrial detention, the prosecutor shall provide the defendant with a copy of any available preliminary law enforcement incident report concerning the offense and the affidavit of probable cause;
(B) if the prosecutor is seeking pretrial detention, the prosecutor shall provide the defendant with (i) the discovery listed in subsection (A) above, (ii) all statements or reports relating to the affidavit of probable cause, (iii) all statements or reports relating to additional evidence the State relies on to establish probable cause at the hearing, (iv) all statements or reports relating to the factors listed in N.J.S.A. 2A:162- 18(a)(1) that the State advances at the hearing, and (v) all exculpatory evidence.
(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) provide the defendant who asserts indigence with an application for public defender services, which the defendant shall complete and submit at that time for immediate processing by the court, unless the defendant affirmatively and knowingly waives the right to counsel;
(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 that there is a drug court program and where and how to make an application to that program;
(8) 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,
(9) set conditions of pretrial release, when appropriate as provided in Rule 3:26;
(10) schedule a pre-indictment disposition conference to occur no later than 45 days after the date of the first appearance; and
(11) in those cases in which the prosecutor has filed a motion for an order of pretrial detention pursuant to R. 3:4A, set the date and time for the required hearing and inform the defendant of his or her right to seek a continuance of such hearing.
(d) Procedure in Non-Indictable Offenses. At the defendant's first appearance before a judge, if the defendant is charged with a 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;
(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; and
(5) set conditions of pretrial release as provided in Rule 3:26 if the defendant has been committed to the county jail.
(e) 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.
(f) Waiver of First Appearance By Written Statement. Unless otherwise ordered by the court, a defendant charged on a complaint-summons (CDR-1) for an indictable offense and who is represented by an attorney and is not incarcerated may waive the first appearance by electronically 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;
(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;
(6) been informed of the date of the pre-indictment disposition conference held pursuant to Rule 3:4-6, which shall occur no later than 45 days after the date of the first appearance; and
(7) been informed that there is a drug court program and where and how to make an application to that program.
The written statement waiving the first appearance shall be electronically filed with the court, and notification provided 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 Rule 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; paragraph (a) amended, new paragraph (b) added, former paragraphs (b), (c), and (e) amended and redesignated as paragraphs (c), (d), and (f), and former paragraph (d) redesignated as paragraph (e) April 12, 2016 to be effective September 1, 2016; paragraphs (a) and (b) amended, subparagraph (c)(1) amended, new subparagraphs (c)(1)(A) and (c)(1)(B) adopted, subparagraphs (c)(9) and (c)(10) amended, new subparagraph (c)(11) adopted, subparagraphs (d)(3) and (d)(4) amended, and new subparagraph (d)(5) adopted August 30, 2016 to be effective January 1, 2017; paragraph (a) amended December 6, 2016 to be effective January 1, 2017; subparagraph (c)(1) amended May 10, 2017 to be effective immediately; paragraph (f) amended July 28, 2017 to be effective September 1, 2017.
(1) If the defendant remains in custody, the first appearance shall occur within 48 hours of a defendant’s commitment to the county jail, and shall be before a judge with authority to set conditions of release for the offenses charged. However, if a motion for pretrial detention is filed at or prior to the first appearance for a person charged with homicide, the judge designated to preside over the centralized first appearance may conduct that proceeding in accordance with this Rule, except that conditions of pretrial release shall not be set.
(2) If a defendant is released on a complaint-summons, the first appearance shall be held no more than 60 days after the issuance of the complaint-summons or the defendant's arrest.
(b) First Appearance; Where Held. All first appearances for indictable offenses shall occur at a centralized location and before a judge designated by the Chief Justice. If the defendant is unrepresented at the first appearance, the court is authorized to assign the Office of the Public Defender to represent the defendant for purposes of the first appearance.
(c) 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, discovery as provided in subsections (A) and (B) below, and inform the defendant of the charge;
(A) if the prosecutor is not seeking pretrial detention, the prosecutor shall provide the defendant with a copy of any available preliminary law enforcement incident report concerning the offense and the affidavit of probable cause;
(B) if the prosecutor is seeking pretrial detention, the prosecutor shall provide the defendant with (i) the discovery listed in subsection (A) above, (ii) all statements or reports relating to the affidavit of probable cause, (iii) all statements or reports relating to additional evidence the State relies on to establish probable cause at the hearing, (iv) all statements or reports relating to the factors listed in N.J.S.A. 2A:162- 18(a)(1) that the State advances at the hearing, and (v) all exculpatory evidence.
(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) provide the defendant who asserts indigence with an application for public defender services, which the defendant shall complete and submit at that time for immediate processing by the court, unless the defendant affirmatively and knowingly waives the right to counsel;
(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 that there is a drug court program and where and how to make an application to that program;
(8) 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,
(9) set conditions of pretrial release, when appropriate as provided in Rule 3:26;
(10) schedule a pre-indictment disposition conference to occur no later than 45 days after the date of the first appearance; and
(11) in those cases in which the prosecutor has filed a motion for an order of pretrial detention pursuant to R. 3:4A, set the date and time for the required hearing and inform the defendant of his or her right to seek a continuance of such hearing.
(d) Procedure in Non-Indictable Offenses. At the defendant's first appearance before a judge, if the defendant is charged with a 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;
(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; and
(5) set conditions of pretrial release as provided in Rule 3:26 if the defendant has been committed to the county jail.
(e) 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.
(f) Waiver of First Appearance By Written Statement. Unless otherwise ordered by the court, a defendant charged on a complaint-summons (CDR-1) for an indictable offense and who is represented by an attorney and is not incarcerated may waive the first appearance by electronically 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;
(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;
(6) been informed of the date of the pre-indictment disposition conference held pursuant to Rule 3:4-6, which shall occur no later than 45 days after the date of the first appearance; and
(7) been informed that there is a drug court program and where and how to make an application to that program.
The written statement waiving the first appearance shall be electronically filed with the court, and notification provided 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 Rule 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; paragraph (a) amended, new paragraph (b) added, former paragraphs (b), (c), and (e) amended and redesignated as paragraphs (c), (d), and (f), and former paragraph (d) redesignated as paragraph (e) April 12, 2016 to be effective September 1, 2016; paragraphs (a) and (b) amended, subparagraph (c)(1) amended, new subparagraphs (c)(1)(A) and (c)(1)(B) adopted, subparagraphs (c)(9) and (c)(10) amended, new subparagraph (c)(11) adopted, subparagraphs (d)(3) and (d)(4) amended, and new subparagraph (d)(5) adopted August 30, 2016 to be effective January 1, 2017; paragraph (a) amended December 6, 2016 to be effective January 1, 2017; subparagraph (c)(1) amended May 10, 2017 to be effective immediately; paragraph (f) amended July 28, 2017 to be effective September 1, 2017.
