On certification to the Superior Court, Appellate Division, whose opinion is reported at 406 N.J. Super. 228 (2009).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized). The Court considers the validity of a search warrant issued by a municipal court judge with respect to premises outside his territorial jurisdiction.
As detailed in the Appellate Division's published opinion in this matter, State v. Broom-Smith, 406 N.J. Super. 228 (App. Div. 2009), a confidential informant provided information that led officers to arrange for the informant to make two "controlled buys" of drugs from defendant Jason Broom-Smith. Following the controlled buys, a determination was made to seek a warrant to search Broom-Smith's house, which was located in Dover Township. Because the Dover Township Municipal Court was not in session, the Ocean County Prosecutor's investigator presented the warrant application to a municipal court judge in Berkeley Township. Both towns are in Ocean County. The warrant was issued, drugs were found in the house, and Broom-Smith was charged by indictment with a series of drug offenses.
Broom-Smith moved to suppress the evidence against him and for discovery. The requested discovery was aimed at determining the whereabouts of the two regularly-assigned Dover Township judges at the time the warrant was sought, and requested a statement of the reasons the Prosecutor's investigator applied to the Berkeley Township judge for the warrant. Broom-Smith asserted that the Berkeley Township municipal judge lacked jurisdiction over a location in Dover Township. He also asserted that a 2003 cross-assignment order issued by the Assignment Judge of Ocean County, which designated every municipal judge as an acting judge for every municipality in the county, pursuant to N.J.S.A. 2B:12-6 and Rule 1:12-3, was overbroad and illegal. Broom-Smith argued that the rule and statute were intended to allow the Assignment Judge to designate one judge from another municipal court to act as a substitute in situations where the regularly-assigned judge was disqualified, not to allow every municipal court judge in the vicinage to act in place of every other municipal court judge for any reason. When Broom-Smith's motions for discovery and to suppress the evidence were denied at the trial court level, he entered a plea of guilty to first-degree possession with intent to distribute more than five ounces of cocaine, contrary to N.J.S.A. 2C:35-5a(1). He was sentenced to a custodial term of twenty-five years with sixty-five months of parole ineligibility.
Broom-Smith appealed from the denial of his motions to suppress and for discovery, again based upon the jurisdictional argument. The Appellate Division affirmed, concluding that N.J.S.A. 2B:12-6 and Rule 1:12-3 authorized the warrant procedure in question. The Supreme Court granted Broom-Smith's Petition for Certification. 200 N.J. 206 (2009).
HELD: The Court affirms the Appellate Division's determination thatN.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.
1. Rule 1:12-3 became effective in 1975. It provides, in part, that "[i]n the event of the disqualification or inability for any reason of a judge to hear any pending matter before or after trial, another judge of the court in which the matter is pending or a judge temporarily assigned to hear the matter shall be designated by the Chief Justice or by the Assignment Judge of the county where the matter is pending except that in the municipal court the Assignment Judge shall designate the acting judge . . . ." N.J.S.A. 2B:12-6 provides that "the Assignment Judge of the vicinage may appoint an acting judge of each of the municipal courts in the vicinage to serve as judge temporarily when the judge of that court is unable to hold the municipal court or for other cause." This provision became effective in 1993, and the "or for other cause" language was added in 1996. The Court discerns in the subsequently-enacted statutory language a legislative intent to incorporate the standard of Rule 1:12-3, "disqualification or inability for any reason of a judge to hear any pending matter . . . ." The statute, in turn, recognizes those categories: "unable to hold the municipal court" or "for other cause." The Court views the latter as a reference to disqualification. (Pp. 4-5)
2. 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. The Court is satisfied, as was the Appellate Division, that N.J.S.A. 2B:12-6 and Rule 1:12-3, 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. In reaching that conclusion, the Court does not interpret that authority as limiting the Assignment Judge to a one-forone substitution. The Court notes that it is a widespread practice of assignment judges to cross-assign more than one judge to carry on in case of the disqualification or inability of the regularly-assigned judge, and it sees no problem with that procedure. (Pp. 5)
3. However, the Court determines that, going forward, some order and uniformity must be imposed on the cross-assignment procedure. The Court reiterates that N.J.S.A. 2B:12-6 and Rule 1:12-3 are co-extensive and authorize cross-assignment only in cases of disqualification or "inability" to hear a case, which generally will require that the officers seeking the warrant attempt to contact the judge of the territorially-appropriate court. The Court provides guidance on what situations will render that judge unable to hear the case. The Court explains that 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. Also, 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, which will eliminate any question of judge shopping. Finally, 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. The Court commends these issues to the Municipal Court Practice Committee for recommendations regarding the retooling of the rule in accordance with these principles. (Pp. 5-7)
The judgment of the Appellate Division affirming the denial of defendant's motion to suppress is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in this PER CURIAM opinion.
At issue on this appeal is the validity of a search warrant issued by a municipal court judge with respect to premises outside his territorial jurisdiction. The facts of the case have been set forth in the Appellate Division's published opinion, State v. Broom-Smith, 406 N.J. Super. 228 (App. Div. 2009), and need not be detailed here. It is sufficient for our purposes to note that because the Dover Township*fn1 Municipal Court was not in session, the Ocean County Prosecutor's investigator presented an application to the municipal court judge in Berkeley Township and obtained a warrant to search defendant Jason Broom-Smith's Dover Township ...