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NJ Municipal Judge May Sign Search Warrant for Residence in Different Town


by in Criminal Defense

State v. Jason V. Broom-Smith, ? N.J. ?, 2010 N.J. LEXIS 224 (March 9, 2010) – The Court affirms the Appellate Division’s determination that N.J.S.A. 2B:12-6 and Rule 1:12-3, which address the designation of judges, were broad enough to authorize the Berkeley Township municipal judge to issue the search warrant for defendant’s house in Dover Township under the circumstances presented in this case.

“Here, when the warrant was sought, the Dover Township Municipal Court was not in session. The Prosecutor’s investigator viewed that circumstance as sufficient to satisfy the statutory and regulatory inability standards, thus justifying his resort to the Berkeley Township municipal judge.

We are satisfied, as was the Appellate Division, that the rule and the statute, which were specifically incorporated by the Assignment Judge into his cross-assignment order, are ‘broad enough’ to authorize the issuance of the warrant under those circumstances…. Nevertheless, in the exercise of our supervisory authority over the courts, we have determined that, going forward, some order and uniformity must be imposed on the cross-assignment procedure.

First, we reiterate that the rule and the statute are co-extensive and authorize cross-assignment only in cases of disqualification or ‘inability’ to hear a case…. Further, the fact that a particular municipal court is not ‘in session,’ that is, holding court, does not necessarily mean that the judge is ‘unable’ to hear a warrant application…. Moreover, the cross-assignment order, which may provide for more than one substitute judge, should prescribe the sequence to which substitute judges are to be resorted. That, in turn, will eliminate any question of judge shopping…. It goes without saying that when a warrant applicant applies to a substitute judge, a record should be made of the reason the application is not being presented to the territorially-appropriate court. Finally, the cross-assignment order should be renewed annually to account for changes in judicial appointments.”






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