State v. Allaband
| Decision Date | 05 March 1974 |
| Citation | 134 N.J.Super. 353,341 A.2d 340 |
| Parties | STATE of New Jersey, Plaintiff-Appellant, v. Benjamin ALLABAND, Defendant-Respondent. |
| Court | New Jersey Superior Court — Appellate Division |
Archibald Kreiger, Asst. Prosecutor, for plaintiff-appellant (Thomas J. Shusted, Camden County Prosecutor, attorney).
Steven Zamrin, Asst. Deputy Public Defender, for defendant-respondent (Stanley C. Van Ness, Public Defender, attorney).
Before Judges KOLOVSKY, FRITZ and CRANE.
The opinion of the court was delivered by
CRANE, J.A.D.
This matter is before us pursuant to leave granted to the State to appeal from an interlocutory order of the Law Division granting defendant's motion to suppress evidence consisting of drugs and paraphernalia which had been seized without a warrant. The trial judge permitted the motion to be made immediately before trial, over objection by the State that the motion was made beyond the time permitted by R. 3:5--7(a).
We do not reach the merits because in our view the motion was improvidently entertained.
Defendant's plea of not guilty was entered on February 15, 1972. Under the provisions of R. 3:5--7(a) defendant had 30 days within which to move for the suppression of evidence. When, on January 16, 1973, the case was called for trial, after having been previously listed for trial several times and adjourned, defense counsel, an attorney from the staff of the Public Defender, moved orally for leave to file a motion to suppress. The reasons given for not having presented a motion earlier were that defendant was interviewed by an investigator who was not a lawyer; that when discovery was received in February 1972 no one read it carefully enough to notice that a motion ought to be made; that the attorney who was handling the case at the time of trial should not be bound by the carelessness of another attorney; that the trial attorney had received the file approximately a week before the trial date, and that defendant should not be prejudiced because there was some negligence in not noticing the issue before trial.
Prior to making his ruling the trial judge commented that 'here, we are dealing with a gross delay in bringing this kind of motion'; that he 'considers this application to be outrageously out of time,' and that 'the court is not impressed that good cause has been shown for the extension of time in this matter.' Nevertheless, upon learning that the Public Defender was willing to file a brief within 48 hours, the judge granted the application, stating its ruling as follows:
Under all these circumstances and providing that the defense counsel supplies a brief in support of her motion to the court, with a copy to the prosecutor, within 48 hours, the motion to suppress will be entertained as soon thereafter as the court can arrange it with counsel. Subject to those conditions, your motion will be entertained, Miss Rosenberg.
It has been suggested that the time limitations of R. 3:5--7 are not to be applied rigidly and that the problems of heavy case loads in the Public Defender's officer are entitled to some consideration. State v. Price, 108...
To continue reading
Request your trial
-
State v. Burnett
...of the time requirements pertaining to motions to suppress does not offend due process standards. State v. Allaband, 134 N.J.Super. 353, 356, 341 A.2d 340 (App.Div.1974); State v. Raymond, 95 N.J.Super. 175, 179, 230 A.2d 404 (App.Div.1967), certif. den. 50 N.J. 296, 234 A.2d 403 (1967).2 T......
-
State v. Del Fino
...novel legal issue contributes to finding of good cause for failure to raise issue in state court proceedings); State v. Allaband, 134 N.J.Super. 353, 341 A.2d 340 (App.Div.1974) (motion to suppress evidence after eleven-month delay without more will not justify good cause to accept belated ......
-
State v. Robinson
...to be filed within 30 days of initial plea, see, e.g., State v. McKnight, 52 N.J. 35, 48, 243 A.2d 240 (1968); State v. Allaband, 134 N.J.Super. 353, 341 A.2d 340 (App.Div.1974), is applicable only to state and federal constitutional claims of unlawful searches and seizure of physical evide......
-
State v. Morrison
...of a motion to suppress in view of Ross' alleged consent, he nevertheless filed the motion. 5 Relying upon State v. Allaband, 134 N.J.Super. 353, 341 A.2d 340 (App.Div.1975), the trial judge concluded that the neglect of an attorney in filing a motion to suppress does not constitute good ca......