Opinion
Submitted November 29, 1971 —
Decided December 10, 1971.
Appeal from The Superior Court, Law Division.
Before Judges CONFORD, MATTHEWS and FRITZ.
Messrs. McGlynn, McGlynn, Ruprecht Graham for appellant ( Mr. Louis Ruprecht, of counsel).
Mr. Joseph P. Lordi, Prosecutor of Essex County, for respondent ( Mr. Michael H. Stieber, of counsel).
We granted leave to appeal from an order dismissing a motion to suppress evidence on the ground that no brief accompanied the motion, although the motion was timely filed.
We are in disagreement with the asserted proposition that defendants filing motions to suppress may routinely delay filing an accompanying brief on the facts and the law, as required by the rule, R. 3:5-7(a), on the claimed justification that advance notice to the State of his factual contentions puts a defendant in an unfair position. The bar is herewith placed on notice that the rule is intended, ordinarily, to be complied with as written. Any complaint about the fairness of the rule should be addressed to the Supreme Court.
In the particular circumstances here shown, however, denial of the timely motion to suppress would visit an undue hardship on a defendant asserting a constitutional right. The several delays in scheduling the hearing of the motion were not the fault of defendant. The State was not prejudiced, a brief for defendant having actually been served on the prosecutor before the date finally agreed upon for the hearing.
The order is reversed and the matter remanded for hearing of the motion to suppress.