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State v. Raymond

Decided: May 16, 1967.

STATE OF NEW JERSEY, APPELLANT,
v.
SHERWIN HERBERT RAYMOND, MICHAEL LORIA, ANN REMES, MICHAEL KAY AND JACK STASSI, RESPONDENTS



Goldmann, Kilkenny and Collester. The opinion of the court was delivered by Goldmann, S.j.a.d.

Goldmann

[95 NJSuper Page 176] The State appeals, pursuant to leave granted, from a County Court order quashing a search warrant issued and executed December 22, 1966, and suppressing the evidence obtained pursuant thereto. That evidence

had led to defendants' arrest and indictment for criminal abortion (N.J.S. 2A:87-1).

Defendants pleaded not guilty to their respective indictments on June 3, 1966 and subsequently moved to quash the warrant and suppress the evidence. Defendants Raymond, Loria and Remes filed their motion on July 20, and defendants Kay and Stassi on July 12 -- respectively 47 and 39 days after the entry of their several pleas.

R.R. 3:2A-6 provides that a motion for the return of property seized and to suppress the evidence obtained as a result of a search warrant "shall be made within 30 days after the initial plea to the charge unless for good cause the court shall enlarge the time. The motion shall be determined before trial." (Italics ours) Defendants concede that their motions were filed beyond the time limit fixed by the rule.

Although not immediately relevant to our discussion, R.R. 3:2A-6 further provides that a motion may be entertained at trial "only if the court finds that the defendant could not reasonably have made the motion prior to trial." Further,

"If a timely motion is not made in accordance with this rule, the defendant shall be deemed to have waived any objection during trial to the admission of evidence based on the ground that such evidence was unlawfully obtained."

Briefly stated, the grounds for defendants' attack upon the search warrant in question were:

(1) There was no probable cause for its issuance with respect to the particular apartment searched, the underlying affidavit being totally lacking in any reference to the apartment except for a conclusory statement of the State Police officer in the opening paragraph of his affidavit. None of the information he had received with respect to defendant Raymond's extensive abortion operation referred to the particular apartment searched, but only to the street address of the apartment building itself.

(2) The affidavit supporting the warrant contained multiple hearsay and did not indicate whether the informers had given prior reliable information to the police authorities.

Before argument on these issues the trial judge considered the State's contention that the motions to suppress should be dismissed because they were not made within the 30-day period limited by R.R. 3:2A-6, nor had any defendant shown good cause to justify an extension of time. Defense counsel attempted to meet this argument by representing that after unsuccessfully seeking an adjournment of plea on June 3, they entered pleas of not guilty for their clients while reserving the right to move to suppress the evidence as well as to dismiss the indictments: "We were very cognizant of time limitations * * *." They admitted, however, that they had not obtained an enlargement of time from the judge who took the plea. (Indeed, they sought no enlargement at any time.)

Although the trial judge repeatedly called defense counsel's attention to the specific language of the rule and sought to elicit what "good cause" could be shown for enlarging the time for filing the motions to suppress, they were unable to come forward with facts establishing good cause. ...


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