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State v. Ferrara

Decided: June 9, 1967.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
DANIEL FERRARA, DEFENDANT-RESPONDENT



Conford, Foley and Leonard. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

The Essex County Court determined that defendant should be permitted to bring on a motion to suppress, pursuant to R.R. 3:2A-6, a confession and admissions allegedly obtained from him by certain law enforcement officers as the result of an illegal search of his person and automobile. State v. Ferrara, 92 N.J. Super. 549 (Cty. Ct. 1966). The defendant had previously been indicted for gambling and bookmaking and thereafter had pleaded not guilty. The State's appeal is by leave of court.

We have concluded that the order should be reversed for two reasons: (1) the making of the order was improvident in the circumstances; (2) R.R. 3:2A-6 does not contemplate a motion of this nature.

I

On July 15, 1965 Judge Yancey of the Essex County Court on motion of defendant entered an order to suppress evidence pursuant to R.R. 3:2A-6. The order of suppression specified a key lock case taken from defendant's automobile and a house key apparently taken from his person. The not guilty plea had been entered May 24, 1965. On April 29, 1966, another motion was filed by defendant for an order "suppressing all confessions, statements and admissions whether oral or in writing which were obtained as a result of an unreasonable search and seizure on February 18, 1965." This was the same search involved in the prior motion. Before the second motion came on for hearing it was denied "without prejudice" by Judge Yancey on motion of the State, the order stating it was entered "for reasons expressed in the opinion rendered by the Court." The present appendix does not contain that opinion, but counsel for defendant represents that the reason for the ruling was that the judge deemed such a motion cognizable, if at all, only under R.R. 3:5-5(b) (permitting motions before trial of "[a]ny defense or objection which is capable of determination without the trial

of the general issue") -- not under R.R. 3:2A-6. Consequently, defendant refiled essentially the same motion as had been denied without prejudice, and this third motion was assigned to the judge (not Judge Yancey) who made the order under appeal. This order was entered, however, not under R.R. 3:5-5(b), as impliedly permitted by Judge Yancey, but as a motion under R.R. 3:2A-6, which that judge had refused to entertain.

The motion, considered as one under R.R. 3:2A-6, was plainly out of time, the rule requiring such a motion to be made within 30 days after plea unless for good cause the time is enlarged by the court. Good cause was not shown here. The defendant had already made a timely and successful motion under the rule. He had not moved to suppress the confession, etc., but only the tangible objects which were in fact suppressed, and there was no good reason why he should not have moved to suppress the confession at the same time. The excuse that counsel did not know the suppression order did not extend to the statement is transparent. The order of suppression, consented to as to form by counsel, mentions only the tangible property. Before us, counsel for defendant frankly conceded that the present motion was an afterthought.

The time limitation of the rule in question is an important element in the procedural policy underlying its adoption, and can be dispensed with only under the conditions specified therein. State v. Raymond, 95 N.J. Super. 175 (App. Div. 1967).

II

In its opinion declaring the availability of R.R. 3:2A-6 as authority to move to suppress in advance of trial a statement or admission taken in the course of an illegal search and seizure the trial court said it was confronted "with an issue of novel impression in New Jersey and one of importance in facilitating the administration of criminal procedure."

We agree with this appraisal of the significance of the issue before the court. However, this but underscores the caution with which a trial court should proceed in considering on its own initiative the expansion of the scope of a court rule of such importance -- a rule ...


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