Judge Malestein graduated in 1987 from Rutgers College with bachelor’s degrees in psychology and French. He later graduated from New England School of Law in 1990 . Before joining the bench, Malestein was an attorney at the offices of Lipman Antonelli, Batt, Gilson, Malestein, Rothman & Capasso. In 2009, he was an assistant county legal counsel and a solicitor for the Hopewell and Cumberland Regional boards of education
Any person aggrieved by an unlawful search or seizure and having reasonable grounds to believe that the evidence obtained may be used against him in a penal proceeding may apply for the return of the property pursuant to N.J.Ct. R. 3:5-7.When property has been seized and no indictment has been returned following passage of lengthy period of time, the court may order the property returned pursuant to this rule. See State v. Tunnel Citgo Services, 149 N.J. Super.427 (App.Div.1977).
In Re Search Warrants Of Vs 2 Worldwide Communications, L.L.C. These procedural rules implement the Fourth Amendment exclusionary rule first established in Weeks v. United States, 232 U.S. 383, 398, 34 S. Ct. 341, 346, 58 L. Ed. 652, 658 (1914), and made applicable to the states under the Fourteenth Amendment by Mapp v. Ohio, 367 U.S. 643, 657, 81 S. Ct. 1684, 1693, 6 L. Ed.2d 1081, 1091 (1961).
The appropriate forum to challenge an illegal search and seizure is “the forum in which the penal proceedings are pending.” Mahler, supra, 177 N.J. Super at 350-52.The remedy appellants seek is indistinguishable from that contemplated by Rule 3:5-7. Although appellants couch their allegations as a fraud upon the court, they allege a Fourth Amendment ground for suppression of evidence in accordance with Franks v. Delaware, 438 U.S. 154, 171-72, 98 S. Ct. 2674, 2684-85, 57 L. Ed.2d 667, 682 (1978), and State v. Sheehan, 217 N.J. Super. 20, 25-26 (App. Div. 1987), namely, that the searches were unconstitutional because they were based on deliberately or recklessly false information.
The remedy they seek is return of seized property and a preclusion of its use as evidence in the Ohio court, the same remedies provided by Rule 3:5-7 and Fourth Amendment case law.A party’s characterization of the relief sought does not dictate whether a motion falls within the purview of the New Jersey exclusionary rule and our holding in Mahler. See State v. Morales, 182 N.J. Super. 502, 508 (App. Div. 1981) (“[n]or does defendant’s characterization of the relief sought,” rather than its essence, affect whether a procedural rule applies or not).
The nature of the allegation and the remedy sought controls the applicable law. The judge ruled that R. 3:5-7(b) required only that defendants submit a statement of facts in order to demonstrate the existence of a factual dispute and that it was not necessary for defendants to file counter-affidavits in order to obtain a hearing pursuant to R. 3:5-7(c). We hold that the trial judge was correct in ruling that R. 3:5-7(b) is clear and unambiguous and does not require defendants to file an affidavit in order to be entitled to a hearing on a motion to suppress evidence obtained as a result of a warrantless search. If the Supreme Court intended to require affidavits under these circumstances, it would have said so. STATE v. TORRES 154 N.J. Super. 169 (1977) 381 A.2d 55. Rule 3:5-7 directly speaks to the ability of a defendant to move for the return of property that was unlawfully seized. See United States Court Of Appeals For The Third Circuit No. 09-2029 Gregg C. Revell; Association Of New Jersey Rifle & Pistol Clubs Inc. V. Port Authority Of New York And New Jersey; Scott Erickson V. Port Authority Of New York And New Jersey, Third Party Plaintiff V. Continental Airlines; County Of Essex; Essex County Jail; Essex County Prosecutor; John Does 1-10, Third Party Defendants. See Jones v. Milford Sch. Dist., 2010 WL 1838961, at *3 n.17 (Del. Ch. Apr. 29, 2010) (“If the state action, however, creates a suspect classification or infringes upon a fundamental right, the state must prove the constitutionality of its conduct under either intermediate or strict scrutiny judicial review.”).