Kenneth Vercammen is a Middlesex County Trial Attorney who has published 130 articles in national and New Jersey publications on Criminal Law, Probate, Estate and litigation topics.

He was awarded the NJ State State Bar Municipal Court Practitioner of the Year.

He lectures and handles criminal cases, Municipal Court, DWI, traffic and other litigation matters.

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Tuesday, November 20, 2018

Rules Governing Practice In The Municipal Courts - Rule 7:8

Rules Governing Practice In The Municipal Courts - Rule 7:8


RULE 7:8. Trial

7:8-1. Mediation of Minor Disputes in Municipal Court Actions

If a person seeks to file or has filed a complaint charging an offense that may constitute a minor dispute, the court may issue a notice to the person making the charge and the person charged, requiring their appearance before the court or before a person or program designated by the court and approved by the Assignment Judge pursuant to R. 1:40-8 (Mediation of Minor Disputes in Municipal Court Actions). If on the return date of a summons, it appears to the court that the offense charged may constitute a minor dispute, the court may order the persons involved to participate in mediation in accordance with R. 1:40-8. No referral to mediation shall be made, however, if the complaint involves (1) serious injury, (2) repeated acts of violence between the parties, (3) clearly demonstrated psychological or emotional disability of a party, (4) incidents involving the same persons who are already parties to a Superior Court action between them, (5) matters arising under the Prevention of Domestic Violence Act (N.J.S.A. 2C:25-17 et seq.), (6) a violation of the New Jersey Motor Vehicle Code (Title 39), or (7) matters involving penalty enforcement actions.
Note: Source-R.R. (1969) 7:3-2. Adopted October 6, 1997 to be effective February 1, 1998; amended July 5, 2000 to be effective September 5, 2000; caption and text amended June 15, 2007 to be effective September 1, 2007.

7:8-2. Place of Trial; Disqualification

  • (a) Generally.Except as otherwise provided by law, the prosecution for an offense shall take place in the jurisdiction in which the offense was committed.
  • (b) Disqualification of Judge.In the event of the judges disqualification or inability for any reason to hear a pending matter, the judge, in addition to the provisions of R. 1:12-3(a), may either refer the matter to the Assignment Judge for designation of an acting judge pursuant to N.J.S.A. 2B:12-6 or transfer the matter to a judge sitting in another municipality within the vicinage. The transferee judge may, however, accept the transfer only if:
    • (1)the transferee judge has been designated as an acting judge of the court of origin by the Assignment Judge of the vicinage, pursuant to N.J.S.A. 2B:12-6 and R. 1:12-3(a); and
    • (2)the transferring judge has found that transfer of the matter will not substantially inconvenience any party.
Upon completion of the trial, the transferee court shall immediately advise the court of origin of the disposition made and shall remit to it the complaint, judgment, all records, and any fines and costs collected. The court of origin shall retain jurisdiction and shall maintain all necessary records as though the matter had been tried in the court of origin, which shall be responsible for effecting final disposition of the matter. The municipality of the court of origin shall bear the costs of prosecution of the matter.
Note: Source-R.R. (1969) 7:4-3. Adopted October 6, 1997 to be effective February 1, 1998.

7:8-3. Adjournment

On or before the first scheduled trial date, the court may adjourn the trial for not more than fourteen days, except that an adjournment for a longer period or additional adjournments may be granted if the court deems postponement of the trial to be reasonably necessary in the interest of justice. In contested matters, the court shall specify the new trial date in granting the adjournment and shall cause the complaining witness, all defendants, and all other known witnesses to be notified of the adjournment and of the new trial date.
Note: Source-R.R. (1969) 7:4-2(c). Adopted October 6, 1997 to be effective February 1, 1998.

7:8-4. Trial of Complaints Together

The court may order two or more complaints to be tried together if the offenses arose out of the same facts and circumstances, regardless of the number of defendants. In all other matters, the court may consolidate complaints for trial with the consent of the persons charged. A party seeking consolidation Complaints originating in two or more municipalities may be consolidated for trial only with the approval of the appropriate Assignment Judge, who shall designate the municipal court in which trial is to proceed. A party seeking consolidation of complaints originating in different municipalities shall file a written motion for that relief directly with the Assignment Judge.
Note: Source-R.R. (1969) 7:4-2(g). Adopted October 6, 1997 to be effective February 1, 1998.

7:8-5. Dismissal

If the complaint is not moved on the day for trial, the court may direct that it be heard on a specified return date and a notice thereof be served on the complaining witness, all defendants and all other known witnesses. If the complaint is not moved on that date, the court may order the complaint dismissed. A complaint may also be dismissed by the court for good cause at any time on its own motion, on the motion of the State, county or municipality or on defendants motion. On dismissal, any warrant issued shall be recalled, and the matter shall not be reopened on the same complaint except to correct a manifest injustice.
Note: Source - R. (1969) 7:4-2(i). Adopted October 6, 1997 to be effective February 1, 1998; amended July 28, 2004 to be effective September 1, 2004.

7:8-6. Transfer to the Chancery Division, Family Part

An action pending in a municipal court may be transferred to the Superior Court, Chancery Division, Family Part pursuant to R. 5:1-2(c)(3) and R. 5:1-3(b)(2).
Note: Source-R.R. (1969) 7:4-2(j). Adopted October 6, 1997 to be effective February 1, 1998.

7:8-7. Appearances; Exclusion of the Public

  • (a) Presence of Defendant.Except as otherwise provided by Rules 7:6-1(b), 7:6-3, or 7:12-3, the defendant shall be present, either in person, or by means of a video link as approved by the Administrative Office of the Courts, at every stage of the proceeding and at the imposition of sentence. If, however, defendant is voluntarily absent after the proceeding has begun in the defendants presence or the defendant fails to appear at the proceeding after having been informed in open court of the time and place of the proceeding, the proceeding may continue to and including entry of judgment. A corporation, partnership or unincorporated association shall appear by its attorney unless an appearance on its behalf by an officer or agent has been permitted pursuant to R. 7:6-2(a)(2). The defendants presence is not, however, required at a hearing on a motion for reduction of sentence.
  • (b) Appearance for the Prosecution.The municipal prosecutor, municipal attorney, Attorney General, county prosecutor, or county counsel, as the case may be, may appear in any municipal court in any action on behalf of the State and conduct the prosecution either on the courts request or on the request of the respective public official. The court may also, in its discretion and in the interest of justice, direct the municipal prosecutor to represent the State. The court may permit an attorney to appear as a private prosecutor to represent the State in cases involving cross-complaints. Such private prosecutors may be permitted to appear on behalf of the State only if the court has first reviewed the private prosecutors motion to so appear and an accompanying certification submitted on a form approved by the Administrative Director of the Courts. The court may grant the private prosecutors application to appear if it is satisfied that a potential for conflict exists for the municipal prosecutor due to the nature of the charges set forth in the cross-complaints. The court shall place such a finding on the record.
  • (c) Exclusion of the Public.In matters involving domestic relations, sex offenses, school truancy, parental neglect, and as may be otherwise provided by law, the court, in its discretion and with defendants consent, may exclude from the courtroom any person not directly interested in the matter during the conduct of the trial or hearing.
Note: Source -- R. (1969) 7:4-2(g). Adopted October 6, 1997 to be effective February 1, 1998; paragraph (a) amended July 5, 2000 to be effective September 5, 2000; paragraphs (a) and (b) amended June 15, 2007 to be effective September 1, 2007

7:8-8. Record of Proceedings; Transcripts

  • (a) Record.If required by order of the Supreme Court, the municipal court shall cause all proceedings to be recorded by sound recording equipment approved by the Administrative Office of the Courts. If not so required, the court may, at its own expense, cause proceedings to be recorded either by sound recording equipment or by a court reporter. If sound recording equipment is used, or if the proceedings are not otherwise recorded, the court shall permit a record of the proceedings to be made by a certified shorthand reporter at the request and expense of any party. Every sound recording and stenographic record of proceedings made pursuant to this rule shall be retained by the municipal court administrator or by the reporter, as the case may be, for 5 years.
  • (b) Transcript.If the proceedings have been sound recorded, any person may order a transcript from the municipal court administrator, and if the proceedings have been recorded stenographically, any person may order a transcript from the court reporter. The charge shall not exceed the rates as provided by law. The person preparing the transcript shall certify to its accuracy.
  • (c) Supervision.The recording of proceedings and the preparation of transcripts thereof, whether by sound recording or reporters, shall be subject to the supervision and control of the Administrative Director of the Courts.
Note: Source-R.R. (1969) 7:4-5. Adopted October 6, 1997 to be effective February 1, 1998.

7:8-9. Procedures on Failure to Appear

  • (a) Warrant or Notice.
    • (1) Non-Parking Motor Vehicle Cases.If a defendant in any non-parking case before the court fails to appear or answer a complaint, the court may either issue a warrant for the defendants arrest in accordance with R. 7:2-2(c) or issue and mail a failure to appear notice to the defendant on a form approved by the Administrative Director of the Courts. If a failure to appear notice is mailed to the defendant and the defendant fails to comply with its provisions, a warrant may be issued in accordance with R. 7:2-2(c).
    • (2) Parking Cases.In all parking cases, an arrest warrant shall only be issued if the defendant has failed to respond to two or more pending parking tickets within the jurisdiction. A warrant shall not issue when the pending tickets have been issued on the same day or otherwise within the same 24-hour period.
  • (b) Driving Privileges; Report to Motor Vehicle Commission.
    • (1) Non-Parking Motor Vehicle Cases.If the court has not issued an arrest warrant upon the failure of the defendant to comply with the courts failure to appear notice, the court shall report the failure to appear or answer to the Chief Administrator of the Motor Vehicle Commission on a form approved by the Administrative Director of the Courts within 30 days of the defendants failure to appear or answer. The court shall then mark the case as closed on its records, subject to being reopened pursuant to subparagraph (e) of this rule. If the court elects, however, to issue an arrest warrant, it may simultaneously report the failure to appear or answer to the Motor Vehicle Commission on a form approved by the Administrative Director of the Courts. If the court does not simultaneously notify the Motor Vehicle Commission and the warrant has not been executed within 30 days, the court shall report the failure to appear or answer to the Motor Vehicle Commission on a form approved by the Administrative Director of the Courts. Upon the notification to the Motor Vehicle Commission , the court shall then mark the case as closed on its records subject to being reopened pursuant to subparagraph (e) of this rule.
    • (2) All Other Cases.In all other cases, whether or not an arrest warrant is issued, the court may order the suspension of the defendants driving privileges or of defendants nonresident reciprocity privileges or prohibit the person from receiving or obtaining driving privileges until the pending matter is adjudicated or otherwise disposed of. The court shall then mark the case as closed on its records, subject to being reopened pursuant to subparagraph (e) of this rule.
  • (c) Unexecuted Arrest Warrant.If an arrest warrant is not executed, it shall remain open and active until the court either recalls, withdraws or discharges it. If bail has been posted after the issuance of the arrest warrant and the defendant fails to appear or answer, the court may declare a forfeiture of the bail, report a motor vehicle bail forfeiture to the Motor Vehicle Commission and mark the case as closed on its records subject to being reopened pursuant to subparagraph (e) of this rule. The court may set aside any bail forfeiture in the interest of justice.
  • (d) Parking Cases; Unserved Notice.In parking cases, no arrest warrant may be issued if the initial failure to appear notice is returned to the court by the Postal Service marked to indicate that the defendant cannot be located. The court then may order a suspension of the registration of the motor vehicle or of the defendants driving privileges or defendants nonresident reciprocity privileges or prohibit the person from receiving or obtaining driving privileges until the pending matter is adjudicated or otherwise disposed of. The court shall forward the order to suspend to the Motor Vehicle Commission on a form approved by the Administrative Director of the Courts. The court shall then mark the case as closed on its records, subject to being reopened pursuant to subparagraph (e) of this rule.
  • (e) Reopening.A case marked closed shall be reopened upon the request of the defendant, the prosecuting attorney or on the courts own motion.
  • (f) Dismissal of Parking Tickets.In any parking case, if the municipal court fails, within three years of the date of the violation, to either issue a warrant for the defendants arrest or to order a suspension of the registration of the vehicle or the defendants driving privileges or the defendants non-resident reciprocity privileges or prohibit the person from receiving or obtaining driving privileges, the matter shall be dismissed and shall not be reopened.
Note: Source - Paragraphs (a), (b), (c), (d), (e): R. (1969) 7:6-3; paragraph (f): new. Adopted October 6, 1997 to be effective February 1, 1998; paragraph (a) text deleted, and new paragraphs (a)(1) and (a)(2) adopted July 28, 2004 to be effective September 1, 2004; paragraph (b) caption amended, paragraphs (b)(1), (c), (d) and (f) amended July 16, 2009 to be effective September 1, 2009.

7:8-10. Waiver of Right to Counsel at Trial

In all cases other than parking cases, a request by a defendant to proceed to trial without an attorney shall not be granted until the judge is satisfied from an inquiry on the record that the defendant has knowingly and voluntarily waived the right to counsel following an explanation by the judge of the range of penal consequences and an advisement that the defendant may have defenses and that there are dangers and disadvantages inherent in defending oneself.
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