[152 NJSuper Page 262] This motion challenges the array of the grand jury and seeks dismissal of the indictment.
Defendants were indicted by a Bergen County grand jury on October 30, 1975 for the crimes of conspiracy and misconduct in office.
Defendants had previously filed several motions focusing on dismissal of the indictment, asserting grounds ranging from allegations of prosecutorial misconduct to deprivation of the Sixth Amendment right to a speedy trial. All other pretrial motions have been heretofore decided. The one remaining motion is based on the alleged improper selection and composition of the grand jury responsible for returning the indictment. This challenge pierces the very heart of any indictment's vitality: the selection and composition of the grand jury.
Defendants present a two-pronged attack on the jury selection process at this time (1974-1975) in Bergen County. First, they allege the substantial under-representation of certain classes, and second, they allege the systematic exclusion of students, a cognizable class. The State denies that students constitute a cognizable class, raises the issue of timeliness, and additionally points out the serious impact that a dismissal would have in this case since the statute of limitations has already run, foreclosing the possibility of reindictment. As to the latter assertion, the court dismisses the same out of hand because if constitutional rights have been violated and the issue timely raised, any impact must yield.
R. 3:6-2 provides that upon indictment the challenge to the array "may be the basis of a motion to dismiss the indictment." Furthermore, such a motion shall be made within 30 days of the service of the complaint or within 30 days of entry of the plea, whichever is later, or within such further time as the court permits.
Defendant Porro initially filed a challenge to the array as part of a civil suit instituted against the Bergen County Prosecutor's Office in October 1975. This challenge was prior
to the date of indictment. Subsequent to the indictment, in the first week of November 1975, defendant Porro filed a similar challenge pro se in the criminal action now pending. The filing of these motions manifests a clear intention on behalf of defendant Porro to pursue a challenge to the array and both were made well within the prescribed time limits of R. 3:6-2.
Subsequent action taken by the courts further support a finding that the challenge with respect to both defendants is timely. Upon the order of Judge Malech and with consent of all parties, an omnibus hearing was scheduled for the end of May 1976. The purpose of this hearing was to dispose of all outstanding pretrial matters. The hearing was conducted by this court and disposition of the challenge to the array was reserved. Another hearing was conducted by this court in September 1976, whereupon it became evident that defendants' challenge would require extensive additional discovery before any decision on the merits could be reached. The court, therefore, reserved decision until such reasonable time that discovery was complete.
Thereafter, on November 30, 1976 Assignment Judge Trautwein, issued an order mandating that certain jury commission and other relevant records be made available to defendants. The order also provided that it was without prejudice to (among other things) defendants' challenge to the array.
It is the opinion of this court that the November 30, 1976 order of the assignment judge erases any doubt as to the timeliness of the present motion in that it clearly indicates an intention to sanction an extended period in which defendants could perfect discovery and does so in accordance with the tenets of R. 3:6-2. Although it is true that the time limitations prescribed by our court rules must be honored so as to advance the orderly administration of justice, these rules must maintain a degree of guarded flexibility and adapt where good cause is shown and the interests of justice would be served.