You are on page 1of 87

NEW JERSEY STANDARDS FOR APPELLATE REVIEW

_________________________

by

ELLEN T. WRY DIRECTOR, CENTRAL APPELLATE RESEARCH STAFF APPELLATE DIVISION, NEW JERSEY SUPERIOR COURT

March 15, 2007, revision © 2007

CONTENTS NEW JERSEY STANDARDS FOR APPELLATE REVIEW PAGE SECTION ONE: Introduction .....................................1

SECTION TWO: I. II.

Prerequisites to Review

..........................3

Is there an Appealable Judgment or Order? .................3 Submission on Appeal of Evidence not Before Trial Court or Agency.....................................12 Issues not Raised Below...................................12 Jurisdiction of Trial Court After Filing of Notice of Appeal..........................................13

III. IV.

SECTION THREE:

General Standards: Plain Error and Harmful Error ..................................14

I. II. III. IV.

General Rule..............................................14 Plain Error Rule..........................................14 Harmful Error Rule........................................16 Conclusion: Plain and Harmful Error......................17

SECTION FOUR:

Standards on Appeal Governing Error in Both Civil and Criminal Cases.................19

I. II.

Error in Charge to Jury...................................19 Error in Certain Discretionary Decisions..................19

ii

III.

Jury Verdict Allegedly Against Weight of Evidence..................................................28 Error in Factfindings of Judge Sitting Without a Jury or of Administrative Agency................29 Credibility Findings......................................34 Prior Appeal..............................................35 Improper Influence on Jury................................35

IV.

V. VI. VII.

VIII. Municipal Court's Decision Appealed to Superior Court............................................35 IX. Appellate Court's Review of Trial Court's Interpretation of the Law.................................37 Decision on New Trial Motion not Based on Weight of the evidence...........................................37

X.

SECTION FIVE:

Standards Governing Errors in Criminal Cases Only .............................38

I. II. III. IV.

Denial of Motion to Acquit................................38 Erroneous Acceptance of Guilty Plea.......................39 Erroneous Refusal to Accept Plea Bargain..................40 Ability of Defendant to Appeal After Pleading Guilty...........................................41 Denial of Motion to Withdraw Plea.........................42 Error in Sentencing Procedure.............................42 Sentence Review...........................................43

V. VI. VII.

VIII. Denial of Post-Conviction Relief..........................46 IX. X. XI. Ineffective Assistance of Counsel.........................47 Prosecutor's Improper Remarks.............................47 Speedy Trial..............................................48

iii

XII.

Contempt Conviction.......................................48

XIII. Disclosure of Identity or Waiver of Juvenile to Adult Court...................................48 XIV. Dismissal of Indictment After Several Mistrials.................................................49 Admission to Pretrial Intervention Program................50 Prosecutor's Assignment of Aggravating and Mitigating Factors Under Sentencing Guideline for Plea Negotiations.....................................50

XV. XVI.

XVII. Prosecutor's Refusal to Enter Plea Bargain or Post-Conviction Agreement in Drug Cases................50 XVIII. Review of Inconsistent Verdicts...........................51 XIX. XX. Decision Whether to Remove Juror for Cause................51 Decision Whether to Dismiss Indictment and Prosecutor's Instruction to Grand Jury as Basis for Dismissing Indictment.....................................52 Assignment Judge's Review of Grand Jury's Presentment Censuring a Public Official...................52

XXI.

XXII. Decision Whether to Grant Prisoner Parole.................53 XXIII. Decision on Whether Defendant is Competent to Stand Trial............................................53 XXIV. Decision Whether to Disqualify Attorney from Representing a Party . . . . . . . . . . . . . . SECTION SIX:

. 53

Standards Governing Errors in Civil Cases Only .......................................54

I.

Errors by Administrative Agencies other than Erroneous Fact Findings...................................54 Error in Grant of Summary Judgment........................57 Error in Denial of Summary Judgment.......................59

II. III.

iv

.71 Decision on Whether to Remove a Fiduciary........ XI............................69 Shareholders' Derivative Action.. VII....67 V.........68 Counsel's Summation in a Civil Case................................................................................70 XIV.67 Prosecutor's Decision not to Seek a Waiver of Forfeiture and Disqualification for Public Office.......72 Review of Trial Court's Decision on Whether a v ...................... XVII............... XXI..................61 Arbitration Award..... XVI...... Decision on How a Malpractice Case Should be Tried.......................60 Error in Trial Court's Review of Decision of Municipal Body (includes zoning cases) . XX..................... Decision on Whether to Dismiss on Forum Non Conveniens Grounds. Decision on Whether to Grant a Remittitur...70 Punitive Damages..........................70 Review of Decision of Tax Court Reviewing Decision of Director of Division of Taxation........... Supreme Court Review of Attorneys' and Judges' Disciplinary Matters.............. Error in Grant or Denial of Civil Motion for Judgment...........71 XVIII...... Review of Condominium Association's Amendments to its Declaration of Covenants and Bylaws........... XII..........................................................................................67 IX.................. VIII........69 X.................... Decision on Whether to Civilly Commit a Defendant Pursuant to the Sexually Violent Predator Act...........................71 XIX....................65 Equitable Distribution...........................IV......70 XV.............. XIII............. VI........... Validity of Forum Selection Clauses.............

.... ...........................Jury Verdict on Punitive Damages is Excessive .. .73 SECTION EIGHT: General Principles Governing Appeals . .. ..... 72 SECTION SEVEN: Summary of Cases ...81 vi ...

only reviews decisions that have already been made. appellate courts do sometimes use the same standards that the trial court or agency used. Once a judge or agency has made such decisions and once the case has been appealed. whether to dismiss a civil action or whether to grant a mistrial. whether to admit evidence. A trial court or agency has to make many decisions. it then needs to decide whether the error warrants intervention. whether it warrants reversal or modification. but may also make findings of fact. often the appellate court is not in as good a position to make those decisions as the judge or agency was. whether to grant various motions. after all. That is why it is essential to know and understand the standards for appellate review. But they frequently use different standards. If it has. looking at the decision made by a trial judge or agency from a different point of view from that of the judge or agency.SECTION ONE: INTRODUCTION This outline gives the leading authorities on most of the standards for appellate review used by New Jersey courts. when they interpret a statute or decide whether a judge properly applied an evidence rule. the appellate court must look at the record and decide whether error has occurred. In deciding whether there was error and whether any error warrants appellate intervention. it does not. Agencies not only exercise their statutory powers. for example. An appellate court. Standards for appellate review are the guidelines used by appellate courts to decide whether error has occurred in a trial court or administrative agency and whether the error requires reversal or other intervention by the appellate court. if it has. many appellate standards differ from trial-level standards: they have built-in limits that make it difficult for appellate courts to reverse. For that reason. when there is no jury. a trial judge will also have to determine the facts. even when there is error. Often. for example. They usually do that. They show how an appellate court decides whether error has occurred and. 1 .

2 . You will still need to do independent research to apply these authorities correctly and to find standards of review used less frequently.This outline tells you the standards that govern the situations you will encounter most frequently.

321. Is there an Appealable Judgment or Order? A. Credit Bureau Collection Agency v. Appeals as of Right: 1. 328 (App. Div. It may be that counsel has simply failed to include a copy of the judgment in the appendix. but there is no copy of any formal judgment in the appendix. 2. and (3) an appellate court is reluctant to consider issues not raised below. Plainfield Sewerage Auth. B. Lind. a brief says only that the verdict was rendered or that defendant was sentenced on a certain day. 2:2-3(a) sets out appeals allowed as of right to the Appellate Division: 3 . Super. The appeal can be dismissed if judgment wasn't entered before appeal was filed. No judgment at all: 1. The rule is that there can be no appeal from an oral opinion. judgment entered after notice of appeal renders the appeal premature. Remember that (1) there must be an appealable judgment or order. only from a formal judgment. but the court usually ignores the defect and does not dismiss. even though it looks as though the case has been fully decided. but usually the court allows the party to have the judgment entered late and keeps the appeal. but sometimes no judgment has been entered. Homeowner's Taxpayers Ass'n. 323 (App. Plainfield v. 1960). Judgment filed after notice of appeal: For reasons above. R. 1961)..J. Borough of S. C. 326. (2) counsel may not submit to the appellate court any evidence that was not before the trial court or agency. Sometimes. I.SECTION TWO: PREREQUISITES TO REVIEW Be sure your case does not involve a problem in one of the following areas. Super.J. Div. of S. 60 N. 71 N.

a) from final judgments of Superior Court trial divisions and Tax Court. 2:2-3(b) sets out cases where appeal to the Appellate Division from final judgments is by leave only: a) from final judgments of a court of limited jurisdiction (such as a municipal court). 2:2-1 says that appeals as of right to the Supreme Court exist only where: a) the Appellate Division has determined substantial constitutional question. d) the promulgation of any rule by an whenever otherwise provided by law. Remember that a final judgment is one that resolves all issues as to all parties. from summary contempt proceedings (except in municipal courts). 3. 8:2) and Wage Collection Section appeals (R. any other order or decision is interlocutory. or b) or a there's a dissent in the Appellate Division. 2. 4 . R. c) from agency. b) from final decisions of state administrative agencies (except tax matters (R. provided administrative remedies have been pursued (this latter requirement can be waived in the interest of justice). 4:74-8)). c) the death penalty has been imposed (this appeal comes directly from the trial court). or d) in such other cases as provided by law. or b) from "actions or decisions" of an adminis¬trative agency or officer if the matter is appealable as of right to a trial division of Superior Court. R.

227 (App. 1974). Appellate Division to appeal must be files a notice of without leave. 3. a final decision of an administrative agency will not be appealable as of right to the Appellate Division. always call the Supreme Court clerk's office to ask whether an appeal has been filed. R. The appellant must exhaust all administrative remedies first.J. Div. particularly where the appellant filed notice of appeal before seeking leave. Other issues will be considered only if certification is granted. 226. When you cite a recent Appellate Division case where there is a dissent. R. R. 293 (App. 2:2-1(b). 2:2-4. 1975).All other appeals to the Supreme Court from final judgments must be by petition for certification to the Appellate Division pursuant to R. Before one can appeal to the from an interlocutory order. Super. Super. Research note: when someone appeals to the Supreme Court as of right based on a dissent in the Appellate Division. you will not be able to find that by Keyciting because the Court has not had to grant an order for certification. 5. 4. 2:21(a)(2). Kerr v. so long as there is a right of review within the administrative agency. 2:2-3(a) notes the general rule that. the 2. Frantzen v. it can grant leave to appeal nunc pro tunc in its discretion. 78 N. R. Howard. Appeals from interlocutory orders: 1.J. 2:12. R. Div. Gilborges v. 129 N. 291. D. 2:2-4. 342 (1978). although 5 . Leave to appeal will not be readily granted. leave granted. If appellant appeal from an interlocutory order court usually dismisses.J. But the court need not dismiss an appeal from an interlocutory order erroneously filed as of right. 4. 132 N. Kerr. Wallace. Appeal as of right to the Supreme Court arising where there's a dissent in the Appellate Division is as to issues in dissent only. Piecemeal appeals are disapproved.

d) order for remittitur which is accepted by the plaintiff on defendant's motion for a new trial (although plaintiff may not appeal that order. Super. 410.J. R. Somerset Tire Service. Inc." Examples of such interlocutory orders which require leave are: a) order for partial summary judgment (for example. 350-51 (1961).J. Div.J. Div. 411-12 (App. 207. alimony. Super. 81 (App. 1974)). 110 N. have not been determined (Kerr v. Div. appeals must be by leave of the Appellate Division granted "in the interest of justice. Super..L. Frantzen v. Div. 102 N. he or she may cross-appeal from that order if the defendant appeals the denial of a new trial) (Mulkerin v. 129 N. 1976).that requirement justice. 1990)). 129 N. 2:2-4 provides for appeals from interlocutory orders of a court or agency. Howard. 226 (App. 35 N. 291. etc. certif. 398 (App. c) order denying summary judgment or granting it on some but not all substantive issues (Applestein v. Super. Township of Cherry Hill. 173. 293 (App. 357 (1985)).J. v. 132 N. f) order referring a juvenile for trial as an adult (State in Interest of R. b) order for divorce where custody. against only one defendant or on less than all issues) (Yuhas v. 209 (App.). 242 N. 343. 1975)).J. 202 N. (Olah v. Div. 129 (1990)). 1970)). can be waived in the interest of 5. Div. Super. 177 (App.. Rendon v. Inc. Super. Super. 119.J.J. 119 N.J. g) Council on Affordable Housing's order returning exclusionary zoning controversy to Law Division (Fair Share Housing Center. Kassimis. 395. 1974)). 140 N. Mudge. denied.. Kerr.J. e) order granting a new trial Slobodian. Div.J.. 76. United Board & Carton Corp. 6 .

166. 2:23(a)). c) an order entered under R.J. 308 (App. j) order granting leave to file a late notice of claim under the Tort Claims Act is interlocutory because it merely resolves the first issue in the case. 5:8-6 where a matrimonial action has been bifurcated (R. Div. 1986). however.. denied.J. 182 N. 1983). Div. Div. 155.A.J. Moon v. 2l4 N. some orders that are appealable as of right even though they appear interlocutory. L." where some claims have really not been disposed of.J. 164-65 (App. b) a final custody order under R. this just creates "the illusion of finality.S. There are. An order at the end of the fact-finding hearing is not a final order. 7 . 306.h) consent order of dismissal permitting plaintiff to reinstate certain claims in the complaint once appeals on other claims had been resolved. Super. certif. 357 N.. 5:10-6 after a preliminary hearing in an adoption case (R. 129 (App. 127. 151 (1987)). 507.J. Super.J. Ruscki v. 2003). i) order in an action initiated by DYFS alleging abuse or neglect of a child where the order comes at the end of only the first part of the process (N. Samuel Geltman & Co. 512 (2005). and does not resolve the merits of the cause of action. 356 N. 9:6-8.47 requires first a fact-finding hearing and then a dispositional hearing. overruling Priore v.A.J. 2:23(a)). 2002). Warren Haven Nursing Home. Super. State.) New Jersey DYFS v. Some examples are: a) an order that unconditionally stays execution of a final order (Estate of Carroll v. 168-69 (App. Super. 190 N. 107 N. City of Bayonne. Div.

Glenwal Co.J. Div. 38-39 (App.. And there is one area where the cases are in conflict: an order for temporary workers' compensation benefits has been held to be final by some cases (Della Rosa v. Current N. 2:2-4 (2005). which allows entry of final judgment on less than all claims. 1988)). Hodgdon v.. 4:53-1 appointing a statutory or liquidating receiver (R. Super. 20:3-12.d) in a condemnation case. e) a certification by a trial judge under R. 1982)). 2:2-3 and R. 3:28 (f) enrolling a defendant in the pre-trial intervention program over the prosecutor's objection (R. 246. Inc.J. 8 Court St.. 2:2-3(a)). denied. comment on R. 69 N. f) an order under R. Super. 214 N. 290. R. Van-Rad Contracting Co. 1986). certif. Div. 2:2-3(a)). Div.. Well-Built Homes of Central Jersey. in effect. 77 N. R. See also cases contained in Pressler. 2:12-1. where necessary to prevent irreparable injury due to an interlocutory Appellate Division order. Div. 109 (1987)). by leave. 1962). Super. 223 N. 360 (App.J.A. from interlocutory orders in only three circumstances: where the death penalty has been imposed (this appeal would be directly from a trial court). 1961)). 35. on certification to the Appellate Division under R. does not allow trial judges. 186 N. 1993). Court Rules. Project Packaging. 6. 66 (App. Anderson v. 344. Super. Super. 294 (App.J. Div.. see Borough of Rockaway v.S. 2:2-2 provides that appeals may be taken to the Supreme Court.J. 7. Super. g) an order under R. 2:2-3(a)). 352. 354 (App. 107 N. and interlocutory by others (Voorhees v. 267 N. 349. Ltd. 254 (App. 4:42-2 of an interlocutory order (R. an order appointing commissioners (N.J.J. Div. The rule can be used only 1) where there has been a 8 . to grant a motion for leave to appeal.J. 65. or dismissing for failure to comply with statutory prerequisites (County of Morris v. 4:42-2.J. Donofrio. Inc.

J. Kurzman v. Super. For good general discussions. An order that affords no affirmative relief. Clifford. 213 N. such as an order granting dismissal of some counts of the complaint. if the judge certifies that there is no just reason to delay enforcement.J. 4:42-2 certification on finality until after the Appellate Division had denied a motion for leave to appeal. 1994). 4:42-2 (2005). Div. 8. Appicie. 1999). New Jersey Bell Telephone Co.L. see Mark A. Micol. 161 (1969). D'Oliviera v. 1986). And an appeal from an interlocutory order will be dismissed where the attorney did not seek R. 321 N. 47 Law and Contemporary Problems 88 (1984). In any of these cases a judge may enter as a final judgment any order that would be subject to enforcement if the order were final. 191-92 (App. Civil Interlocutory Appeal in New Jersey. Sullivan. 189. Riley v. 346 (App. and Robert L. and is not certifiable under this rule. Super.J.J. Div. A trial judge can't make an interlocutory order final.J. 637. Interlocutory Appeals. 92 N. 9 . or 2) upon complete adjudication of all rights and liabilities of a particular party.J.. or 3) upon partial summary judgment or other order in payment of part of a claim. would confer no enforcement rights. 273 N. and hence appealable as of right. Pressler. Court Rules. Div.complete adjudication of a separate claim. Super. 343. Current N. It is a misuse of the rule for a judge to certify an order that doesn't qualify with the purpose of trying to make the order appealable. 641-43 (App. comment on R. by so labeling it under this rule.

Ed. 122. Yaccarino.). 2d 65 (1978). 499-501 (1999). State v.J. 36 N.J. 157 N. 2:3-1.J. Even if the Legislature has designated a sanction as civil. at 499-501. State v.J. Farr. 475. Barnes. so that the State could not appeal acquittal of the refusal charge. Barnes. 98 S. 82. 362. The factors used to determine which cases are criminal are set out in State v. Div. 183 N. State v. 475. denied. Ct. 142 (1961). Newark v. The distinction can be difficult in quasi-criminal cases and in violations of ordinances. Widmaier.J. 291. Where sentence imposed for a first or second degree crime is appropriate to a crime of a lesser degree. the State may appeal within ten days. 84 N. or complaint is dismissed because a statute or ordinance is unconstitutional. 12 N. 69 N. e. 295 (1949) (where violations of zoning and health ordinances were considered criminal in nature). 368 (1980).J. State v. Widmaier. State v. the Court held that a charge of refusal to take a breathalyzer test was quasi-criminal. 157 N.J. Div. See. Appeal by the State from acquittal of a defendant is generally not allowed unless the matter can be construed as civil instead of criminal.J.. 2187. 4. Widmaier. State v. 3 N." thus making it criminal in nature. Appeal from acquittal in criminal cases is not allowed if it would constitute double jeopardy. 20.A. 96 N. 124 (App. 115 (1953).S. United States v.E. R. N. Borough of Verona v. supra.g. that "does not foreclose the possibility that it has a punitive character. 437 U. 57 L.) In State v. certif. 2C:44-1(f)(2). Shalit. Appeal by the State criminal cases: in criminal cases and quasi- 1. Super. Widmaier. at 49294. id. 492 (1999). 157 N. Fiore. accusation. 1967) (violation of a health ordinance was considered civil and hence the State could appeal.S. Pulverman.J. 10 . State v. 2. 105.J.J. Super. 369 (1980). 84 N. 23 (App. Where a criminal indictment. Scott.J. the State may appeal that ruling only if the issue was raised by motion before or after trial. 3. 362.

240. Boyd. G. Infinity Broadcasting Corp. 179 N. 51-54 (1976).J.J. Agency Appeals May go to the Law Division or to the Appellate Division: An appeal to review the action or inaction of a local administrative agency is by complaint in lieu of prerogative writ in the Law Division. v. then it is better to assign responsibility to one tribunal.J. But the Supreme Court ruled. then the appeal should be in the Law Division. v. 255. ____ N. Nevertheless. 56 (App. 375 N. Cooper Medical Ctr.J. 340 U. No appeal from consent judgments: Parties cannot consent to a judgment and then appeal. even a decision of a State agency with statewide jurisdiction is better reviewed in the trial court. 2005). Ed. in Infinity Broadcasting Corp. Where the ordinary rules on allocation of jurisdiction within the Superior Court would result in separate courts hearing parts of the same controversy. It does not go to the Appellate Division. 1981). Salisbury. Super. 71 N.J. 4:69-1.S. 11 .J ____. 71 L. 40. See Selobyt v. State v. 481. Div.463 (App.J. But an appeal to review the action or inaction of a State agency goes to the Appellate Division. R. Condemnation cases fall into that category. 91. Super. N. R. 683 (1950). Watson. There used to be an exception that required appeals from State administrative agencies with only local jurisdiction to go to the Law Division. Meadowlands Comm'n. F. ___ N. v. on rare occasions. that that exception should no longer be followed. ___ (2006). Div. And where it is necessary to develop a record before there can be meaningful review. Winberry v. N. 183 N. 99-100 (App. Vagott. 877. 2:2-3(1). 1982). cert. denied. 53.J. Pascucci v. Div. supra. Keough-Dwyer Correctional Facility. Meadowlands Comm'n. Super. 5 N. 484 (1982). This time limit is strictly construed.J. The rule allowing an appeal as of right from a final judgment contemplates a judgment entered involuntarily against the loser.

1972). an attorney will annex to his or her brief on appeal material that was not in evidence below.. Submission on Appeal of Evidence Not Before Trial Court or Agency: Occasionally. 76 N. 49.Where parties in the Chancery Division voluntarily choose to use the alternative dispute resolution process under N. 56 (App." Weinstock v. This is not permitted. Co.S. III. see cases cited at Pressler. below) will consider allegations of error not brought to the trial judge's attention. 229. comment on R. Super. Weinstock. denied. 234 (1978). II. 2:6-2 (2005). Jurisdiction Appeal: of Trial Court After Filing of Notice of 12 .J. 1977). 62 N. 182. it frequently declines to consider issues that were not presented at trial. 211 (App. they accept a limited right of review of the arbitrator's or umpire's decision. IV. 234 (1973). 154 N. Div.A.J.J. And any further review by the Appellate Division would occur only in rare circumstances "where public policy would trigger the general supervisory power of the Courts. Court Rules. which requires them to go to the Chancery Division. State v.J.J. Super. Ins. the court will not consider such material and often notes that fact in its opinion. certif. unless such an issue (even a constitutional issue) goes to the jurisdiction of the trial court or concerns matters of substantial public interest. Nieder v. 188-89 (App. 120 N. Royal Indem. without moving for permission to expand the record on appeal. Current N. Issues Not Raised Below: Although an appellate court (under the plain error rule discussed at Section Three. II. Co. the appellate court will not consider it. 377 N. 2A:23A-1 to -30.. 208. Sidoti. 2005). Div. Div.J.J. not to the Appellate Division. Super. B. Home Ins. Middle Dep't Insp. Generally. Agency v.

" And the appellate court can entertain a motion for directions to the lower court or agency to modify or vacate any order. that a trial court does not have jurisdiction to rule on a motion for reconsideration once a notice of appeal has been filed. although it can correct clerical errors in the judgment pursuant to R. 2:9-1(a). R. among other things. 13 . Kiernan v. 1:10 and as otherwise provided." Nevertheless.J. Div. 2002). 89. Kiernan. 1:13-1. even on its own initiative.R. 355 N. Super. 2:9-1(a) provides that except for very limited exceptions. 94 (App. This rule means. the same rule provides that the trial court "shall have continuing jurisdiction to enforce judgments and orders pursuant to R. "supervision and control of the proceedings on appeal or certification shall be in the appellate court from the time the appeal is taken or the notice of petition for certification is filed.

the appellate court will not reverse on the ground of such error unless the appellant shows plain error: i. but 14 . The different terms are just used in different situations.. The plain error rule and the harmful error rule are identical. Rule 2:10-2 reads." R. If error has occurred in the trial court. error "clearly capable of producing an unjust result." R. Plain Error Rule: This rule is used when the trial error was not brought to trial judge's attention and is raised for the first time on appeal. 2:10-2." In either case. depending on whether the error was brought to the attention of the trial judge. in full: Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result. If the error has not been brought to the trial court's attention. then use the term "plain error. General Rule: R. the appellate court will not reverse on the basis of that error (except in some welldefined circumstances where case law identifies certain error as always so serious that the court will not even examine whether the error was "plain" or "harmful")." If it was raised at trial. thereby meeting the definition of "plain" or "harmful" error.SECTION THREE: GENERAL STANDARDS: I. talk about "harmful error. A.e. PLAIN ERROR AND HARMFUL ERROR II. 2:10-2: 1. unless an error is "clearly capable of producing an unjust result. General Rule: "Plain" or "harmful" error is error that is "clearly capable of producing an unjust result. but the appellant did not bring it to the attention of the trial judge. 2:10-2.

2:10-2 that provides that "the appellate court may. 107 N. 90 S. 2d 797 (1970). 410 (1987). "Errors impacting directly upon these sensitive areas of a criminal trial are poor candidates for rehabilitation" under the plain error theory. However. Stated in terms of its effect in a jury trial. Weeks.J. denied. 26 L. 117 N. certain kinds of jury instructions are so crucial to a jury's deliberations on the guilt of a criminal defendant that errors in those instructions are presumed to be reversible.J. 396. For example. the part of R.the appellate court may. 291 (1989). [State v. plain error is: legal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result. Macon. Vick.] 4.J.J. 930. in the interests of justice. 2. in the interests of justice. Note." State v. notice plain error not brought to the attention of the trial or appellate court. 57 N. the possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. 191. 3. 54 N. 399 U. State v. 79 N.S." This means that even when no party to the appeal raises a 15 . 526. 325. See also State v. Not any possibility of an unjust result will suffice. 2254. Ed. 206 (1979). 336 (1971). Ct. the court must always charge on the elements of the crime. 538 (1969). notice plain error not brought to the attention of the trial or appellate court. 288. too.J. cert. Here is an example of the scope of plain error rule. Simon. 5. In considering a jury charge. State v. Hock.

R. Super. Corollaries to Plain Error Rule: 1.. the plain error rule will be applied. 443. 128 N. 57 N. Frequently.J. 2. Div. 65 N. 74 (1974).particular issue." Center for Molecular Medicine and Immunology v. the appellate court may raise it "where upon the total scene it is manifest that justice requires consideration of an issue central to a correct resolution of the controversy and the lateness of the hour is not itself a source of countervailing prejudice. of Belleville. 276-77 (App. 39. Div. 41. Super. B. 2003) (quoting In re Appeal of Howard D. 446 (1962)). 2:6-2(a).J. 50-51 (1970). Harmful Error Rule: This rule is used when a specified error was brought to the trial judge's attention. The "harmful error" rule is essentially identical to the "plain error" rule even though it applies to error which was properly raised below. certif. an appellate court. 325. counsel must indicate that when he or she states the issue in the If the error wasn't appellate brief. 36 N.). besides invoking the plain error rule. 57 N.J. III. 333 (1971). Harper. Twp. Under both rules an error will 16 . Wilson.) raised below.J. Macon.J. Johnson Co. (If it was not. State v. State v. Conclusion: Always look first to see if the error raised on appeal was raised below. 357 N.J. State v. Errors created by counsel will not ordinarily be grounds for reversal. 270. C. 48 (App. denied. assigns a certain interpretation to counsel's failure to raise the error below: it notes that that failure can be taken to mean that counsel did not consider the error to be significant in the context of the trial. One such example is counsel's failure to object to opposing counsel's remarks on summation.

IV. State v. Even error of constitutional dimension can be harmless. it will not be ground for reversal if it was "harmless error. 57 N.J.S. as with "plain error. even though an alleged error was brought to the trial judge's attention. 2d 705. Super.not cause reversal unless it is "clearly producing an unjust result.J. Super. 1997). the court won't reverse. when a trial judge improperly denied a defendant's request to represent himself in a criminal trial. 2003). capable of Thus. 23 (1970)." R. 87 S. See State v. however. but the standard for determining whether constitutional error warrants reversal differs from the usual standard. Macon. 18." an error will be found "harmless" unless there is a reasonable doubt that the error contributed to the verdict. 57 N. Ed. Here. Ct. 229." Harmless error will be disregarded by the appellate court. 710 (1967). State v. automatic reversal is required. For example. 325. 386 U. 362 N. then it decides if it was harmful.J. Conclusion: Plain and Harmful Error: If an appellant claims error. 338 (1971). 17 L. 57 N. The appellate court will not even try to assess the impact of the denial. 24. 244 (App. State v. If it was not. Scherzer. 824. Div. that there are some errors that are so serious that that the harmless error doctrine will not even be applied. Div. 17 ." Chapman v. 301 N. State v. 2:10-2. Here the State must convince the appellate court "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. California. 363. the appellate court decides first whether it was error at all by applying whatever standards govern that type of error. the error is not amenable to the harmless error doctrine. 337-38 (1971). 18. 325. 828. Macon. This is true even if the error is of constitutional dimension. Thomas.J. Note. Slobodian. If it was error. 441 (App.J. and if the error was brought to the trial judge's attention.

Remember that the standards for deciding whether an error not raised below as "plain" are identical to those used to decide if error raised below was "harmful. the court goes through the same process: it first decides if it was error. The only real difference is the terminology: just be sure to use the right term at the right time. 18 . then decides if it was plain error.If the alleged error was not raised at trial." In either case the issue is whether the error is clearly capable of producing an unjust result.

Haines. 110 N. general review of what instructions should be particularly with reference Super. for valid reasons. No party is entitled to have the jury charged in his or her own words.J. Super. a municipality has the discretion "to accept or reject. Walker. 204. For example. 162 N. State v.J. 396. Error in Charge to Jury: When an appellant raises error in the jury charge. Error in Certain Discretionary Decisions: A. 422 (1973). Moreover. a 19 . 322 N. But where the appellant failed to object to the charge. State v. R. 117 N. the charge must be read as a whole. 63 N.J. gives an excellent kinds of general and special given in a criminal case. II. overruled on other grounds. as well as courts." State v. 242.J. 51 N. have a great deal of discretion in many areas. 291 (1989). 1967).J. General Rules: Administrative agencies and other governmental bodies.J. 535. State v. Thompson.). Simon. to identification testimony. 1:7-2 specifically provides that a showing of plain error must be made when appellant claims error on appeal. The court will not read just the portion alleged as error. Div.J. Kaplan v. For example. 79 N. 546-53 (App. 411 (1971). 1:8-7 specifically requires written requests to charge. 59 N. denied. 487 (1999). Wilbely. Rothman. 206 (1988). the judge must always charge the elements of the crime. 404 (1968). Largey v.J. 251 (App. certif.SECTION FOUR: STANDARDS ON APPEAL GOVERNING ERROR IN BOTH CIVIL AND CRIMINAL CASES I. 206 (1979). All that is necessary is that the charge as a whole be accurate. Nevertheless. Vick. R. 96 N. erroneous jury instructions are "poor candidates for rehabilitation under the harmless error philosophy.J. State v. aff'd. 191. 420. Div. 288.

J. the appellate court need not give the usual deference. McLaughlin." Such exercises of discretion "are entitled to respectful review under an abuse of discretion standard.J. 366. This applies to a decision on a request for an adjournment for a criminal defendant to obtain new counsel. 92 N. certif. Super.J. but acts under a misconception of the applicable law. DiRienzo. 383 (1969). denied.bid that does not conform with specifications or formal requirements in non-material respects.J. 1970). 156 N. 1966).J. Adjournment: Decision to deny a motion for an adjournment. Div. Comm. 507 (App. 378 (1995). C. Super. 381 (1989). Examples of Discretionary Decisions in trial courts: 1. State v.. Quigley. certif. 360. 96 N. denied. Super. State v. 2.J. Div. Certain decisions made by a court in the course of a trial are said to be addressed to the court's discretion and will be reversed on appeal only if an "abuse" or "mistaken exercise" of that discretion is shown. 242.J. Super. 158 (App. 53 N. 335 (1971). 259 (App. 159 (App. 140 N. 310 N. Div. State v. B." Manalapan Realty v. 153. The court instead must adjudicate the controversy in the light of the applicable law in order that a manifest denial of justice be avoided. State v.J. Stanley.J. Kavanaugh v. 503 (1959). D'Orsi. Fort Lee. 113 N. 532 (App. 640. State v. 63 N. Manalapan Tp.J. 498. In any case." Serenity Contracting v. 151. 485. Div. 20 . 1960). 306 N. Div. Winter. Mistrial: Decision to grant or deny motion for mistrial. Exception to the rule on trial court discretion: If a judge makes a discretionary decision. 30 N. 1997). 647 (1984).J. Super. 527. Greenberg v. 58 N. a "trial court's interpretation of the law and the consequences that flow from established fact are not entitled to any special deference. Steele.).

545 (1969). Equitable Distribution: Although what assets are available for distribution and valuation of assets are subject to sufficient credible evidence rule. 484 (1963). Borodinsky. aff'd sub.J. to exclude otherwise admissible evidence under specified circumstances.J. 1971). 964.E.J. 1924. 185 (1965). 1978).S. 1:8-6. 382 U. Further Deliberation: Decision to send jury back for further deliberations after it has announced a deadlock. Borodinsky v. Super. Eberhardt v.J. 295 (App. 471. Photos: State v. Conklin.J. Decision to admit photos. cert. 183 S.J. 403 specifically allows a judge. 10 L. Excluding or Admitting Evidence: N. Reading to Jury: A decision to read or refuse to read certain testimony to jury. nom. 44 N. Div. 10 L. Super. State v. 9. Massie. 2d 1075 (1965). denied. Vanarelli. but while the cases under other rules first apply the specific rule to determine whether the 21 . 562 (Law Div. 2d 1075 (1963). in his or her discretion. Ed. 83 S. Williams. 540. 855.J. R. 54 N. 1972). 437. Pessini v. 121 N. 6. 176. 555.S. Ed. R. 374 U. Most other evidence rules do not specifically permit an exercise of discretion. 443-44 (App. 1:8-6(b). issue of manner of allocation of assets and amount of award is addressed to judge's discretion. Dispersal of Jury: Decision to allow jury to disperse for lunch or the night.3. 4. Sequestration: Decision to sequester jury. 293. Wolf. 39 N. Div. Ct. Super. 115 N. 1924. State v. 5.R. 162 N. 7. Ct. 8.

State v.J. Marshall. 199. 186-87 (1997). 1999). 1995). Div. Pressler. Brown.g.J. Dismissal Mistrials: of Criminal Case After Multiple A judge may dismiss an indictment after two or more mistrials. State v. 404(b) whether to admit other crime evidence is reviewed under the abuse of discretion standard.J. 163 N. 117. 106 N. Ramseur. 325 N.J. 11. Super.J. Harvey.E. Owens-Corning. 167-68 (1997)). 27. Div. 148 N. Div. 89. 123. Erazo. 112. For example. 151 N.J. 283 N. 22. 99 N. Court Rules. comment on R. State v. 44. Motion for Recusal: Whether a judge should disqualify himself or herself is a matter within the sound discretion of the judge. certif. 12. 99 N.requirements for admissibility have been met. A ruling on whether the requisite chain of possession has been proven in a criminal case is within the judge's discretion.J.J. Super. Dismissal of Indictment: 22 . 1968). Jadlowski v. A ruling on whether an expert is competent to testify is addressed to the discretion of the trial judge (Carey v.. 10. State v. 131 (1991). denied. 436 (1985). Super. but the issue of whether novel scientific evidence should be admitted requires the appellate court to perform an independent review of the issue (State v. See. 266 (1987). Digregorio.R. 418. 132 N. A judge cannot be considered partial or biased merely because of rulings that are unfavorable toward the party seeking recusal. 32 (App. e. 126 N. 64 (1993).J. Current N. but his or her discretion must be governed by the factors set out in State v.J. Abbati.J. 221 (App. Lovett. 2:10-1 (2005)). 79 (2000).J. a ruling under N. Benevenga v. they also speak in terms of granting substantial deference to the trial judge's discretion on evidentiary rulings. 27 (App.

J. denied. an interlocutory order before final judgment is a matter committed to the sound discretion of the trial judge. Super.J. denied. 2001). Div. Marinelli v. 635 (2001).J. Cyklop Strapping Corp. Super. Super. 462 (App. 389 (App. 77 (App. 167 N. 250. 339 N. 14.J.J. Div.).J. Newark Bd. Div. 1987). 277 N. Burt v. of Educ. Johnson v.J. 344 (App. Mitts & Merrill. 310 (App. 277 (1995). Super. Div. 140 N. State v. Warmbrun. But see State v.. 336 N. This remains true even where a party moves for reconsideration of the issue in the trial court after the Appellate Division has already ruled on the issue in an interlocutory appeal. 2002). 196 (1988). 61. Super. 110 N. Trustee's Request Against Estate: to Charge Attorneys' Fees A judge's denial of a trustee's request to charge attorneys' fees against the trust estate will be 23 . for special rule where the prosecutor's instruction to the Grand Jury is the basis for seeking dismissal of the indictment.. 455. denied.J.J. 263 (App. 220 N. 15. Super.A decision on whether to dismiss an indictment is addressed to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. 374. West Jersey Health Systems. Cummmings v. Hogan. certif. 319. 1996). Fusco v. Trial Court's Reconsideration Before Judgment of Its Own Interlocutory Orders: Final A trial judge's reconsideration of. 59 (App. 295 N. Bahr. Denial of Motion for Reconsideration: Decision on whether to deny motion for reconsideration is addressed to the judge's discretion. 51. 303 N. 1994). certif. certif. 349 N. Super. Div. Div.J. and grant of relief from. Div. 296. 13. 1997).

Nissan Motor Corp. Kurzke v. 443. Div. 1985.J. Addonizio. Div. Div. 55.J.J. is addressed to the trial court's discretion and will not be disturbed on appeal absent a manifest abuse of discretion. 17.J. Decision to Reopen a Case after Summations but Prior to Jury Charge: This decision is addressed to the judge's discretion. When the commitment is pursuant to the Sexually Violent Predator Act the 24 . a bid that does not conform with specifications or formal requirements in nonmaterial respects. 1997)." Such exercises of discretion "are entitled to respectful review under an abuse of discretion standard. 20. Municipality's Rejection of Bid with Non-Material Defect: A municipality has the discretion "to accept or reject. 459 (App.. Fort Lee. Cooper. quoted in In re Commitment of V. 159. Div. Decision on Whether to Dismiss on the Ground of Forum Non Conveniens: This decision is addressed to the judge's discretion because forum non conveniens is an equitable doctrine. for valid reasons. 349. such as a trustee under a will. 2001). Wolosoff v. Super. 159 (App. 336 N. 165 (2000). Super. Super. Super. 474. 10 N. 16. 564 (1952). 18.. 306 N.J.reversed only for an abuse of discretion. CSI Liquidating Trust. 164 N. Super." In re Commitment of J.J. 479 (App. State v. 151. Mears v. 357 N. 339 N. 63 (2003). Decision on Whether to Remove a Trustee: Decision on whether to remove a fiduciary. 306 (App. 2001).J. 19. 532.. Decision on Civil Commitment: Review of a trial court's decision following a commitment hearing is extremely narrow." Serenity Contracting Group v.P.A. 205 N. It is given the "'utmost deference' and modified only where the record reveals a clear abuse of discretion.

4:50-1 allows a motion to vacate a default judgment on several grounds. 173 N. 330. the policy favoring the finality of judgments is an important factor so that relief is available only when "truly exceptional circumstances are present.J. Decision to Vacate a Judgment (General Rule): A decision to vacate a judgment lies within the sound discretion of the trial judge.State must prove that the person is a threat to the health and safety of others because of the likelihood that he or she will engage in sexually violent behavior. 21. guided by principles of equity. Mancini v. 109.. That threat must be proven "by demonstrating that the individual has serious difficulty controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend. Decision to Award Attorneys' Fees." In re Commitment of W. 334 (1993). 286 (1994). Collier. a grave injustice would occur.J. Inc.Z. v. Div. Decision on Motion to Vacate Judgment Based on R. Little.. 68.J. Therefore. 71 (App. 357 N. 274. 167 25 .. 132 (2002). 274. Damages. 4:50-1(f): R.J. Packard-Bamberger & Co." Housing Auth. of Town of Morristown v. quoted in First Morris Bank and Trust v. 2003).S. while the initial decision on an application under subsection (f) lies within the trial court's discretion. or Prejudgment Interest: Punitive All of these decisions rest within the discretion of the trial judge (attorneys' fees and prejudgment interest) or the factfinder (punitive damages). E.D.J. 132 N. 135 N. Housing Authority of Town of Morristown v. were it not applied." For this subsection. 135 N. Little. The ground in subsection (f) allows vacation for "any other reason justifying relief from the operation of the judgment or order." Subsection (f) should be used "sparingly" and only "in situations in which. Super. 23. the appellate court will reverse where that discretion has been abused. 274. 22. 283 (1994). All must be reviewed by using an abuse of discretion standard. Roland Offset Service.

179 N. Safe and Sound Security. a malpractice case is proven by having a "trial within a trial. Gonzalez v. Ed. 368 N. such as an order to testify. 333 N. That issue requires a de novo review.N. 619-20 (App. How to Try Malpractice Case: Often. 52.J. unless the parties disagree. Super. Decision on Whether to Accept Plea Bargain: 26 . 2000) (prejudgment interest). 28. Kosmin v. Super.2d 674. Kirkman. Div. 121 S. Vidas. Then the final determination of the court is discretionary and is entitled to deference. Maul v.J. 431.S. 209 (App. Decision Whether to Grant Prisoner Parole: This decision is subject to the discretion of the parole board. Since the parole eligibility statute creates a presumption that a person should be released on his or her eligibility date. however.J. Cooper v. N. 2004).J. Div. 74 (App." But that is not the only way to prove such a case. Decision on What Sanction to Impose for Failure to Obey Court Order: Decision on how to sanction someone who disobeys a court order. Kozlov. Div. 427. 343. 26.J. 363 N. Leatherman Tool Group. a decision not to release must be considered arbitrary if it is not supported by a preponderance of the evidence in the record.J. 596. 25. 149 L. Garcia v. 1683. Trial judges should not become involved in determining how such a case is to be tried. 361 (2004). State Parole Board. Note. Super. 24. 685 (2001). Ct. is addressed to the discretion of the trial judge. 203. Super. 443-44 (2001) (attorneys' fees).J. 1994)(punitive damages). that the issue of whether punitive damages are so excessive as to violate the Fourteenth Amendment to the United States Constitution is not reviewed under this standard. 532 U. 424. 27. 41-42 (App. 270 N. 2003). Musto v. but can be reviewed by the appellate court for arbitrariness. Div. 1678.

J. certif. 3:21-1. Super. 34 N.The appropriate appellate standard for reviewing judicial rejection of a plea bargain is whether the judge abused his or her discretion. 366 N. 129 N." "Judicial discretion is not unbounded and it is not the particular predilection of the particular judge. Daniels. 483. 40. 300. Luckey. 135 (2003).J. 2005). Bellamy. A voluntary plea should not generally be vacated absent "some plausible showing of a valid defense against the charges. denied. 109 (2004). 38 N. Gonzalez. State v.J. Madan. III.J. The trial judge has considerable discretion in deciding such a motion. 198 (1961). 276 N. But where the plea is part of a knowing and voluntary plea bargain. 34 N. Super.J. State v. State v. Deutsch. Fischer. Huntley. Decision on whether to grant motion discovery period under R. State v. Huntley. Div. although he or she should take into account the interests of the State. 254 N. at 18.J. 28. New Trial Motion: 27 . 48 (1962). Super. 366 N. Decision on Whether to Allow Withdrawal of Plea: A motion to withdraw a plea before sentence should be liberally granted. 87 (2004).J. . not whether the recommended bargain constituted an abuse of prosecutorial discretion. State v. Super. Jury Verdict Allegedly Against Weight of Evidence: R." State v. Div. And the judge must exercise "sound discretion. 127. R. The burden is on the defendant to show why the plea should be withdrawn. 4:24-1(e): to extend This is a discretionary decision.J." State v. 129 N. 198 (1961). 1992). 303 (App. Huszar v. Greate Bay Hotel. A motion to withdraw a plea after sentencing should be granted only to correct a manifest injustice. 66 N. . 79. Div. supra. 190. Super. 1994). 178 N. 29. Super.J. is heavier. Super. 312 (1974).J. State v. 17.J. R.J. 3:201. 4:49: A. 463. 471-72 (App. Deutsch. See also. 190. defendant's "burden of presenting a plausible basis for his request to withdraw . 375 N. State v. 487 (App. 13." State v. 98.

the standard on appeal for review of the decision on the motion is: The trial court's decision on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law. 2:10-1.J. Super. State v. 65 N. 361. 362-63 (App. Right to Appeal: 1. Div. 3. To decide if there was a miscarriage. Fiore v. 74 N.. the appellate court defers to the trial court with respect to "intangibles" not transmitted by the record (e. 360 (1979). Novotny. Div. Super. State v. 190 (App. Perry.. 311 N.J. R.] 2. 45 (1974). aff'd. 188. 1973). 2. Riverview Medical Center.The appellate court will not consider an argument that a jury verdict is against the weight of the evidence unless the appellant moved for a new trial on that ground.g. (The standards for deciding whether to grant leave are also set out in that case. Dolson v. "feel of the case") but otherwise makes its own independent determination of whether a miscarriage of justice occurred.J. B. 128 N. 2:10-1. Baxter v. If a new trial is granted to a criminal defendant. since this is an interlocutory order.J.J. 55 N. credibility. demeanor.J. 597-98 (1977). 6-8 (1969).) C. 65 N. If a new trial was denied. 2. the opponent can appeal only by leave. the movant can appeal denial as of right. 588. Sims. Anastasia. Fairmont Food Co.J. Carrino v. 363 (1974). the State has a right to seek leave to appeal. If new civil trial was granted. 355. Whether the motion was granted or denied. 28 . Standard of Review: 1. [R. 359. 1998). 78 N.

S. 173 (1990)). Hollahan. Locurto.J. Otherwise the court will remand.. 544 (1991). Div. see the next section of this outline. 164. for factfindings.J. 237 N. Florida. General Rule: When error in a factfinding of a judge or administrative agency is alleged. Matter of Issuance of a Permit.J. The court gives "due regard" to the ability of the factfinder to judge credibility and. 44 N. B. 29 . to the agency (Matter of Vey. 470-71 (1999).J. Kordulak Bros. 589. If the findings are bad enough and the record sparse. where an agency's expertise is a factor.3. 72 L.J. 599 (1965). the court may order a whole new trial. Ct. Close v. 372. 644 (1999). 124 N. In re Taylor. IV. 1989). Div. For the standard used in non-jury trials (whether there was "sufficient credible evidence"). Prerequisite to Review: Administrative Agencies and trial judges must make factfindings that are sufficiently clear and complete to permit review. Hewitt v. Error in Factfindings of An Administrative Agency or of a Judge Sitting Without a Jury: A. 457 U. 2218. 157 N. 395. 158 N. the scope of appellate review is limited. Tibbs v. Ed.J. 382-84 (App. Super. The "weight of the evidence" standard is not used in non-jury trials. 56 N. Super. 42-43. 31. 661-62 (1982). 2d 652. acquittal is not mandated. considering the proof as a whole. This is true even though a reversal based on insufficient evidence does require acquittal. 1959). Result of Reversal: Where the appellate court decides that verdict in a criminal case is against the weight of the evidence. 406 (App. 463. or to the court. Fanarjian v. D.J. 534. 120 N. The court will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record. 2211. to that expertise. Moskowitz. 102 S. State v.

Miragliotta and Prunty. Super. the court must also make sure that when the agency head rejects administrative law judge findings the agency head follows the requirements of the Administrative Procedure Act. Div. Review of Factfindings of Administrative Agencies: While the Administrative Procedure Act. 52:14B-10(c). supra.A. It upholds those findings if supported by the record even if the findings are contrary to factfindings of an administrative law judge whose decision the agency head reviewed. 2001. But now.20 at 390 (2000 ed.J. not the agency head who was in the best position to judge credibility. § 7. Div.D. Board of Trustees of PERS. provided the agency head follows the requirements of the Administrative Procedure Act regarding reversal of credibility findings and makes the necessary statement of his or her reasons for rejecting any of the administrative law judge's findings. the court may examine the administrative law judge's 30 . 485 (App. 349 N. Because the agency head does have the power to reject the administrative law judge's findings. 464.C. 2004). 349 N. v. as amended July 1. A reviewing court has never needed to defer to an agency head who reversed credibility findings of an administrative law judge because it was the administrative law judge. & 2001 Supp. And the agency head must then state "with particularity" his or her reasons for rejecting any kind of findings made by the administrative law judge. 52:14B-10(c) cited above. of Medical Assistance. Note that the court reviews the factfindings of the agency head whose decision is on appeal.J. v. Super.).S.D.J. and must make new findings supported by the evidence. it prohibits the agency head from rejecting or modifying findings of an administrative law judge as to issues of credibility of lay witnesses unless those findings are arbitrary. S. Div. Super.J. Cavalieri v. allows an agency head to reject or modify the findings of an administrative law judge. Div. of Medical Assistance. capricious or unreasonable or are not supported by the record. 527. S. at 485. Administrative Law & Practice.A. N. citing Lefelt.S. 534 (App. 2002). because of the requirements of N. New Jersey Practice Series. 368 N.J.

Div. v. 1979). Desai v. 87 N. denied. St. however. Div. The standard is not substantial credible evidence. Div.J. the general rule (sufficient credible evidence) applies. denied. 565 (1979).J. courts will not interfere. & Dispensary. certif. Super. Lyon v. it should make fact findings de novo. certif.J. Hackensack Water Co. Super. 80 (1976). Division of Medical Assistance. 60 N. In tax cases decided by the old Division of Taxation before institution of the Tax Court.J. 2. Super. 2 N. 378 (1981). The Supreme Court held that the Appellate Division should not use the general standard. 259. 1981). v. Exceptions to General Rule: 1. 23 (App. aff'd. but neither court nor agency head is bound by the administrative law judge's findings. 70 N.J.findings to see whether the agency head's findings are supported.). 70 N. So long as the hospital's decisions concerning medical staff are reasonable. 292 (1974). and there was no hearing. Memorial Hosp.J. 303 (1980." Garrow v. S. Burlington Cty.J. Where a court reviews a decision of a nongovernmental body (such as a hospital board).J.J. Tax 303. 311-12. Glaser.. 349 N. 79 N. even though of a hearsay nature.J. and further the hospital's health care mission. 344. 72. Glaser. Elizabeth Gen. 259 (App. 84 N. the applicant and the non-governmental body. Hosp. 255-56 (App.J. 178 N. and consistent with public interest. at 483-84. the agency made factfindings based on documents and affidavits only. it must focus on the reasonableness of the action taken with reference to the interests of the public. It is not the function of the reviewing court to substitute its independent judgment on the facts for that of an administrative agency. Now that there is a Tax Court and such informal proceedings no longer take place. the record must "contain sufficient reliable evidence. v. In re Suspension of License of Silberman. 549. This modifies Guerrero v. Citizens Bank & Trust Co. 273-76 (1972). 13. 65 N. 31 .J. 243. 251. Super. 127 N. to justify the result. 169 N.D. D. supra. 356 (1976). In re Grossman. Borough of Haworth.

J.J. at 93.J. no inference of discrimination can be drawn. 548 (3d Cir. scholarship. 100.J. 79 N. is reasonably attributable to an honest even though partially subjective evaluation of their qualifications. 1980)). 3. Gant. Elizabeth Gen. it not only follows the usual rule governing agency factfindings. Burdette Tomlin Memorial Hosp. 283 N. 93 (1986). St. 107 N. Nanavati v. Barnabas Medical Ctr. Desai v.J. but also must take care not to interfere with the subjective determinations regarding such matters as teaching ability.2d 532. 630 F. D. Muhlenberg College. Examples of General Rule: 32 . 540 (App.J.. 240 (1987).. Rutgers. Div.. Barnabas Medical Ctr. Nanavati v. supra. promote or grant tenure . at 92. the general test set out above in Garrow v. Super. When a court reviews the decision of the Division on Civil Rights on a claim that an educational institution discriminated in tenure or promotion decisions." Chou v. Valley Hosp. 524. . A court will not interfere with a hospital's decision setting a standard for admission so long as the standard is rationally related to the delivery of health care.J. The standard for reviewing a decision denying staff privileges. See also Desai v. at 565.. supra. although actual harm to patients need not be proven. Burdette Tomlin Memorial Hosp. A decision terminating a physician's staff privileges need be supported only by sufficient reliable evidence and proof of disharmony on the staff can support that decision.J. 107 N. 103 N. The test is whether the hospital's decision is supported by sufficient reliable evidence. does not require a court to give so much deference to the hospital. and professional stature. 106-07 (1986). even though of a hearsay nature. St. Berman v. Thus. 79. 103 N. Kunda v.2d 60. 1980). at 254. "[w]hen a decision to hire. 621 F... supra.Barnabas Medical Ctr. supra. Hosp. 103 N. however. . 1995) (quoting Lieberman v. There are slightly different standards governing judicial review of a decision admitting a physician to staff privileges and a decision denying privileges. 67 (2d Cir. & Dispensary. 103 N.

This cite is used in criminal cases and is the classic cite for this standard. Board of Review.. Trial judge sitting without jury: State v." State v. 471 (1999). 82 (1981). 65 N. 589. of Am.J." Pioneer Nat'l Title Ins. Investors Ins. an appellate court may "appraise the record as if we were deciding . 463. Lucas. 581 (1973). Div.J. 470-71 (1999)..J. 579-81 (1980). Inc. 332.J. 571. 89-90 (App. Id.J. Lewicki v. 157 N. Locurto. 556. 155 N. 44 N.1.J. 484 (1974).J. If findings are not supported by the record. This is the rule where a court reviews the Division of Compensation judge. Use Rova Farms Resort. Div. 75. Kordulak Bros. even without specifically articulating detailed findings of credibility.).J. 88. 33 . Super. Co. . Workers' compensation judge: Close v. Dep't of Civil Serv. the Commissioner may make de novo findings and conclusions. 162 (1964).J. Co.J. Alsan Masons. 88 N.. 85 N. 46. And where the lower court has made credibility determinations. v. 3. at inception and make our own findings and conclusions. . aff'd o.J.. Johnson. 146. Locurto. Super. 338 (App. 320 (1978). 1964). and De Angelo v.J. It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance. v. Div. Rahway State Prison. Where the Commissioner considers the recommendation of the judge of compensation on Second Injury Fund liability. 42 N. A more recent cite for the same proposition is State v. 2.J. 562 (1963).. 474. 4. Super. 463. Campbell v. 599 (1965).. 39 N. 472-75..b. Employment security (Board of Review): Zielenski v. 54 (App. 78 N. 157 N. New Jersey Art Foundry. 62 N. aff'd o. 122 N. 81 N. where the reasons for its determination may be inferred from the record the Appellate Division is not free to make its own credibility determination.).b. for civil cases. Inc. Civil Service Commission (now the Department of Personnel): Henry v.

Hartford Accident and Indem. 1997). v. Credibility Findings: This issue may come up in the context of a claim that a verdict is against the weight of the evidence or that findings are not supported by the evidence. 1984). 34:13A-5. 235.J. Super.. 316 N.J. Credibility is always for the factfinder to determine. Agric.. N. Co. 305 N. The correct standard for nonjury trials is the one set out in this section.J. Div.J.5.2(f). And "a case may present credibility issues requiring resolution by the trier of fact even though a party's allegations are uncontradicted.J. 143. Co. E. In re Taylor. 7.Y. 149 (1962). 95 N. Parsekian. But it may also be raised in the context of other issues.J. 1998). 482." That standard is used only in jury trials. Super. of Watertown. Ins." D'Amato by McPherson v. 375 (App. 22 N. 492 (1956). D'Amato. PERC: In re Bridgewater Tp.S. 351. 109.. 158 N. 34 . Motor Vehicle Bureau: N. Div. N. Atkinson v. Div. Inc.A. 37 6. 644 V.J. Note: Counsel often argues that the fact-findings of a judge or administrative agency are "against the weight of the evidence. Ferdinand v. Merit System Board: (1999). quoted in CPC Int'l. Don't confuse the two. 115 (App. 249 (App.

Since the Law Division judge is not in a position to judge the credibility of witnesses. There is one exception to that rule: when a Law Division judge is assigned to hear a municipal court matter. these municipal court decisions are in criminal or quasicriminal cases. Cusick. Law Division's Standard: Municipal court decisions are appealed first to the Law Division of Superior Court. 35 . Cerefice. a new trial should be granted without further inquiry as to its actual effect. Prior Appeal: If an issue has been determined on the merits in a prior appeal it cannot be relitigated in a later appeal of the same case. the review is de novo on the record. Div. 55.J. Super. Super. although it gives "due regard to the municipal judge's opportunity to view the witnesses. When the appeal is from the municipal court to the Law Division. 119 N. Municipal Court's Decision Appealed to Superior Court: A. then the appeal is taken directly to the Appellate Division." Ibid. State v. 485 (App. 42 N. 2000). 7:13-1. Locurto. Buchan. 297 (App. except for some situations governed by R. 374. he or she should defer to the credibility findings of the municipal court judge. Flintkote Co. 157 N. Div. The Law Division makes a new decision on its own." State v. R." Panko v. 3:23-1. VII.J. State v. State v. Super.J. 3:23-8. 116 N. State v. 146. rather than have one Law Division judge review the decision of another. 335 N. Div.J. Improper Influence on Jury: A new trial must be granted because of juror misconduct or irregular influences whenever such matters "could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge. VIII. Except for forfeiture and penalty cases. 482.J. 1972).VI. 7 N. 157 (1964). 61 (1951). R. even if of constitutional dimension.. 1971). Johnson. 381-82 (App. "If the irregular matter has that tendency on the face of it.J.

and should not make new credibility findings. 42 N. assess the credibility of the witnesses. rather than remanding to municipal court to give the State a second chance to prove its case. at 163. 1993). 36 . Div. State v. at 383. 470 (1999). Super. Johnson. But like the Law Division. supra. and the appeal therefore goes to the Appellate Division. Cerefice. at 383. 335 N.J. The Supreme Court reviews the Appellate Division. or make conclusions about the evidence. Moreover. the review is not de novo.J. Ibid. it must acquit. Super. Super. supra. 615 (1998). at 470-74. to see how the Supreme Court does that review.J. 162 (1964). B. 146. While the basic standard is the same. It should defer to the trial court's credibility findings. see State v. the Appellate Division is not in a good position to judge credibility. It may not "weigh the evidence. 42 N.463. Cerefice. not remand. and State v. See R.J. the Appellate Division reviews the decision of the Law Division judge as it would normally review any other Law Division decision. 461-62 (App. supra. 463. Rather. State v. 157 N.J. Sparks. 458.J. 472-74 (1999). State v. not the municipal court. Locurto. 335 N. if the Law Division holds that certain evidence should have been excluded and that the excluded evidence would be necessary to sustain a conviction. Appellate Standard: The issue in the Appellate Division is whether there is sufficient credible evidence present in the record to uphold the findings of the Law Division. In the rare case where the initial decision was made by a Law Division judge sitting as a municipal court judge. 147 N. 3:23-8(a) on criminal If the Law Division finds the evidence in a municipal court criminal or quasi-criminal case to have been insufficient.J. State v. 599. 157 N. it must acquit the defendant. Locurto.J. trials de novo. supra." State v. State v. Johnson. 261 N. Barone.

2:10-1 (2005)..J. 140 N. Current New Jersey Court Rules.4 on R. 37 . but rather a decision that is addressed to the trial court's discretion." Manalapan Realty v. 366. X. Comm. Appellate Court's Review of Trial Court's Interpretation of the Law: "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference. 378 (1995). Decision on New Trial Motion Not Based on Weight of the Evidence: Where an issue raised on a new trial motion involves not the court's factfindings. the appellate court will not reverse unless there was an abuse of discretion.IX. Manalapan Tp. See cases listed in Pressler. comment 2.

not just by the State's proofs.J. Super. 130 N. then the sufficiency of the evidence should be tested by the whole record. 3:18-1: At the close of the State's case or after all evidence has been given the court must. 240 N. R. 1974). denied. the trial judge must deny the motion if "viewing the State's evidence in its entirety. Where defendant has been convicted of a lesser included offense. 3:18-2: when motion to acquit n. Meaning of R. R. the same standard is used. Reyes. 67 N. State v. is made after jury verdict. 72 (1975). even if he or she objected to its submission. There is." State v.. be that evidence direct or circumstantial.J. 1990)." and giving the State the benefit of all reasonable inferences.v. Trial judge's standard: 1. in deciding whether the conviction for the lesser included offense can be 38 . and makes a motion for acquittal after the jury's verdict. Super. 458-59 (1967). 3:18-1: when a motion is made at the close of the State's case. Because defendant has had the benefit of submission to the jury of a lesser included offense based on proofs adduced in his or her own case. 50 N. State v." R. i. Sugar.J.e. grant a motion to acquit if "the evidence is insufficient to warrant a conviction. 152-53 (App. however. 148. the standard is different. 2. Error in Denial of Defendant's Motion to Acquit: A. 3. on motion by defendant or on its own initiative. 3:18-1. 341-42 (App. only the State's evidence will be considered. Kluber. certif. Div.J. Div. 336. an exception to this rule (see next paragraph). 454. 4. "a reasonable jury could find guilt beyond a reasonable doubt.SECTION FIVE: STANDARDS GOVERNING ERRORS IN CRIMINAL CASES ONLY I.o.

Florida. 2d 652. Kovack. 661-62 (1982). and 2. 2211. C. II. 2d 30. 102 S. 101 S. 91 N. 50 N. 2218. Tibbs v. Note that the appellate court will not consider any evidence adduced in defendant's case when the motion is made at the close of the State's case.J. Ct. (1981). Trial Judge's Standard: R. Super. 2d 1 (1978). Reyes. in the court's discretion. Ed. 240 N.J. 40. 67 L. State v. B. State v. determines. 258. inducements or promises not on the record. by inquiry of defendant and others. 33. Ed.S. and (2) with understanding of the charge and the consequences of the plea. 970. 72 L.S. 454. 1990). 1.J.S. 484 (1982). Appellate Court's Standard: The appellate court will apply the same standard as the trial court to decide if the trial judge should have acquitted defendant. The judge must also determine that there is a factual basis for the plea. This means (among other things) that the judge must make sure defendant understands the possibility that a stated period of parole ineligibility may be part of the sentence. State v. 148. 459 (1967). that the plea is made (1) voluntarily and without any threats. This rule therefore differs from that governing reversal on the ground that a verdict is against the weight of the evidence. State v. Burks v.sustained. Result of Reversal: Reversal on the ground of insufficient evidence requires an acquittal. Ct. 450 U. 263 (1964). Ct. 42-43. 43. 16. Div. 3:9-2. addresses defendant personally. 437 U. United States. 39 . 57 L. 476. 31. 153 (App. 972. Erroneous Acceptance of Guilty Plea: A.J. Sugar. R. 970. 3:9-2 says that when a defendant offers to plead guilty a trial court cannot accept the plea unless it: 1. 42 N. Hudson v. 98 S. no acquittal is required there. Louisiana. Ct. Ed. Moffa. 101 S. 457 U. 2141.

3. understanding of the charge and consequences. Rhein.J. . Erroneous Refusal to Accept Plea Bargain: Rule 3:9-2 provides that the court "in its discretion. the court could refuse to remand if it finds that the failure to comply with any of the requirements of R. 1990)." Thus. the appropriate appellate standard for reviewing judicial rejection of a plea bargain is whether the judge abused his or her discretion.B. And the judge must exercise "sound discretion. not whether the recommended bargain constituted an abuse of prosecutorial discretion. 117 N. Super. Div. Madan. 112. 487 (App. 20. The appellate court considers a claim that the judge erroneously accepted a guilty plea to be "tantamount" to a request to withdraw a plea after sentencing. If the record shows that the judge either failed altogether to ask the required questions." But the standard set in Blise was rejected by the Appellate Division in State v. 3:9-2. Div. and factual basis. III. as in any case. Super." State v. 1971). said that the judge should not substitute his or her judgment as to the merits of a proffered plea bargain unless "clearly warranted by the facts readily available to the court through the presentence report. 3:9-2 is harmless.J. whether there was a "manifest injustice"). 276 N." State v. Appellate Court's Standard: 1. Here. 483. .J." "Judicial discretion is not unbounded and it is not the personal predilection of the particular judge. . the appellate court can remand for trial or new plea. Daniels. 366 40 .e. 121 (App. It then uses the standards set out in section V (next page) to decide whether a reversal is in order (i. See State v. 2. may refuse to accept a plea of guilty . It said that Blise imposed "a stricter standard for rejection upon the sentencing judge than the simple exercise of discretion test unequivocally set down in R. 244 N. 1994). Blise. Super. or that the answers elicited failed to show voluntariness. 30 (Law Div.

confession and identification issues). First. Second. 46 L. under R. 220. 109 (2004). 3:9-3 (2005). 1976). The distinction between R. with the approval of the court and consent of the prosecutor. 242. Daniels. Ed. But see Menna v. Henderson. 93 S. Ed. 502 (App. 258. Court Rules. 421 (1982). a guilty plea is a "break in the chain of events" and prevents a defendant from raising on appeal any non-jurisdictional defects (even of constitutional dimension) which occurred prior to plea. 3:5-7(d). 41 . 89 N. 241. 244-45 (App. 267. Ct.J. 242. State v. Exceptions: 1. which modify this rule somewhat. Morales. This rule is aimed primarily at the pretrial issues encompassed by R. Ability of Defendant to Appeal After Pleading Guilty: A. New York. B. 21. Super. 3:9-3(f).J. 3:93(f) is discussed in State v. 89 N. 2. 61.J. Perry. An appellate challenge to the existence of a factual basis for the plea is not waived by the entry of a guilty plea. See also. Ct. 241. 2d 195. Super. Div. Pressler. 3. 423 U. denial of a motion to suppress evidence may be reviewed on appeal even though the judgment of conviction is entered following a guilty plea. denied. 96 S. Butler. 30-31. State v. 276 N. IV. Taylor. Ct. 98 S. 2d 235 (1973). Ed. 182 N. Ct. 1981).S.J. 3:13-1(b) (that is. supra. and Blackledge v.J. 98. 1602. 140 N.J. certif.N.S. 2d 628 (1974). 197 (1975). 36 L. a defendant may enter a conditional guilty plea and reserve the right to appeal from the adverse determination of any specified pretrial motion. There are two significant exceptions to the rule set out in the previous paragraph. comment on R. 411 U. General Rule: Usually. at 487. Div. Current N. R. Tollett v. 94 S.J. State v.2. 417 U. 62 n. 2098. 40 L. 3:5-7(d) and R. 224 (1982). Super. Super.S.

is heavier. 190. State v. Gonzalez. R. .V. 127. denied. 178 N. Luckey.J. 13. 70 N. though. Cerce. 198 (1961).J. State v. 38 N. The burden is on the defendant to show why the plea should be withdrawn. 135 (2003). 1961). although he or she should take into account the interests of the State.J. Super. A motion to withdraw a plea after sentencing should be granted only to correct a manifest injustice. 17. if defendant's counsel spoke for him or her at sentencing. Huntley. 34 N. defendant's "burden of presenting a plausible basis for his request to withdraw . A failure to so afford defendant the "right of allocution" warrants automatic remand for resentencing if defendant brings a direct appeal. Super. Deutsch. 79. 129 N. supra. Error in Denying Motion to Withdraw Guilty Plea: R. 40. 1992). Div. Div.J. A motion to withdraw a plea before sentence should be liberally granted. State v. Error in Sentencing Procedure: A. 66 N. 312 (1974). State v. 198 (1961). Harris. certif.J. R. 2. 303 (App. 48 (1962).J. that will suffice unless the court finds 42 . Super.J. 254 N. 190. 366 N. State v. 3:21-4(b) requires the sentencing judge to address defendant personally and ask if he or she wants to make a statement. 395-97 (1966). State v. . but allows it after sentencing to correct a manifest injustice.J. at 18. The trial judge has considerable discretion in deciding such a motion. A voluntary plea should not generally be vacated absent "some plausible showing of a valid defense against the charges.J. When a defendant moves for post-conviction relief. Deutsch. 300. 46 N. 387. State v. Super. But where the plea is part of a knowing and voluntary plea bargain. Bellamy. Huntley. 3:21-1.J.J. Right of Allocution: 1. 3:21-1 requires a motion to withdraw to be made before sentencing. 9. Super. 87 (2004). VI. State v. 34 N." State v. 18-19 (App." State v. 129 N. Fischer.

79 N. although it could be excessive. upon inquiry. supra. bargained sentence. State v. Id. 284 (1974).J.J.J. denied. denied. at 145-46. 283 and 65 N. 144 (1969). Super. Whitaker. State v. 400. Deegan. 3:21-4(e)) and those reasons must be in the judgment (R. 475.J. 1985). 503. Reasons for Sentence: A judge must state his or her reasons for the sentence imposed (R. Former Rule: The longstanding rules on excessive sentences changed with the passage of the criminal code. 495 (App. A plea State v. Div. B. Current Rule: 43 . Div." Otherwise. 66 No sentence would be reduced N. merely because the co-defendant got a lighter sentence. Sentence Review: A. 150 N. 55 N. 75 N. Martelli. VII. C. 128. the court finds that "the challenge relates to matter of insufficient importance to warrant the taking of proof" it "may disregard the challenged matter and so declare.some prejudice in that procedure. Kunz.J. 378. 46 N.J.). Sanducci. Spinks. at 395-97. Pursuant to State v. was presumed to be reasonable. State v. 512 (1979). 126 N.J. it should take proof on the matter. If. 201 N. 402-04 (App." Defendant may challenge the contents of the report. B. The cases used to hold that a sentence would not be upset for excessiveness unless the defendant convinced the appellate court that there was an abuse of discretion. certif. State v. 3:21-5). the court must show the defendant the presentence report and provide a "fair opportunity to be heard on any adverse matters relevant to the sentencing. Cerce.J. 65 N. Pre-Sentence Report: State v. Div.J.J. 568. 524 (1977). Super.). Failure to give complete. 573 (1975). specific reasons can result in remand for amended reasons. 385 (App. certif.

J. 363-64 (1984). A reviewing court must make sure that sentencing guidelines were not violated. and decide whether application of the guidelines make a particular sentence clearly unreasonable. 643-45 (1985). 475 U. 89 L. the trial judge must explicitly determine and 44 . 334 (1984). Roth. Id.J. 292 (1987). the judge may look to other evidence in the record as well. Roth. Ed. 345 (1984).J. 334.J. Yarbough. Sainz held that State v. 95 N. 95 N. Standards Under Current Rule: Thus. 1014. Ct. Roth. for standards for reviewing pleabargained sentences." State v. Plea Bargains and Consecutive Sentences: See State v.Under the Criminal Code.J. denied. cert.S. 1193. D. the "unfettered sentencing discretion" of pre-code law has been replaced with "a structured discretion designed to foster less arbitrary and more equal sentences. 95 N.J. Controlled Dangerous Substances Offenses: In sentencing for a controlled dangerous substance offense. reasonably credible evidence". 369. (2) "require that the factfinder apply correct legal principles in exercising its discretion". 107 N. 375 (1984). determine that findings on aggravating and mitigating factors are based on the evidence. E. Sainz. C. and State v. 106 S. the appellate court must now make sure that the trial judge followed the sentencing guidelines in the criminal code. The code is offense-oriented and does not focus on rehabilitation. for factors governing imposition of consecutive sentences. Hodge. and (3) modify sentences only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience. It must (1) "require that an exercise of discretion be based on findings that are grounded in competent. 627. 100 N. applies to plea bargained sentences." State v. 334. at 364-65. State v. 2d 308 (1986). 283. 95 N. It also held that a trial judge need not base his or her sentence solely on the facts elicited from defendant when he or she pleaded guilty.

J. 609.J. McBride.A. State v. 2C:44-1(f)(2). R.J.. Roth. Sanders.S. 262 N. The appeal must be filed within ten days of pronouncement of sentence (not of judgment of conviction). the State may appeal. in its discretion.J. 580 (1975).weigh aggravating and mitigating Sainz. Super. 2. State v. R. If VIII. 45 . Roth. G. 334. as well as from one attacking a conviction.). Div. 95 N. 2:3-1(b)(4). 107 N. Appeal from Sentence: When a defendant is convicted of a first or seconddegree crime and the judge either imposes a term appropriate for one degree lower or imposes a noncustodial or probationary term under N. Post-Conviction Relief: The State may appeal from a judgment in a postconviction proceeding collaterally attacking a sentence. 3:214(g). Standard of Review: The same standard is used to review a sentence when the State appeals as when the defendant appeals.J.J. 334 (1984).S. 283. State v. Error in Denial of Post-Conviction Relief: A.J. A sentence under the youthful offender statute is now merely an option that should be used only in limited cases when the court. That preference no longer exists. 95 N. Youthful Offenders: factors. aff'd o.J. used to mandate a preference for sentencing youthful offenders to the youth complex. 7. State v. 134 N. N. The ten-day limit is strictly enforced. deems it appropriate. Styker. 344-35 (1984).J. State v. 254 (1993). 291 (1987). On appeal from a denial of post-conviction relief the court checks first to see if defendant raised any proper grounds below for post-conviction relief. State v. 2C:441(d). Appeal by State from Sentence: 1.A. Grounds for Post-Conviction Relief: 1. 66 N. 577. 21 (App. F. 3. 107 N. 616 (1987).b.

4. 2. Petition on any other ground: within five years of judgment or sentence. Petition to correct illegal sentence: R. then the court at post-conviction relief proceedings should allow an evidentiary hearing and make a determination on the merits of defendant's claim. But a defendant's failure to raise ineffective assistance of counsel as an issue on direct appeal rarely bars raising that issue on petition for postconviction relief because it falls within R. Any matter which could have been but was not raised in any prior proceeding or on any appeal cannot be a ground for relief. 459-64 (1992).R. any time. R. previously R. 3:22-5. R. 451. 3:22-12.J.R. and hence are the same as those used in any appeal: for example. 3:22-2. State v. Time for P. 3:22-4. any matter which could have been raised on direct appeal cannot be grounds for post-conviction relief. Deciding the Appeal: Standards for deciding whether there was any error in denial of post-conviction relief (once it is established that the grounds raised are cognizable on P. petition) depend on what errors are alleged. 3:22-12. R. C. Where there was no direct appeal. unless there is excusable neglect. If a defendant makes out a prima facie case of ineffective assistance at trial. unless it couldn't reasonably have been raised before. Grounds for relief are set out in R.C. Petition: 1. Any matter cannot be raised. or unless denial of relief would be unconstitutional. 129 N.C. 3:22-4. 5.proper grounds were not raised the denial of relief must be affirmed. Preciose. B. R. 2. 3. 3:22-2. 3:224(c). were the factfindings supported by 46 . expressly adjudicated 6.

83 (1999).J. 52 N. 65 N. State v.sufficient credible evidence N. 89 S. 102 N. An attorney may make remarks that constitute legitimate inferences from the facts. 668.J.S. 429 (App. supra. Ramseur. 104 S. State v. 48 (1974). State v." State v. 418. certif. Dennis. Ed.J. 2064. 146 N. 395 U." State v. such as improper remarks in summation.J.S. 42. State v. cert. 322 (1987). an appellate court should determine whether "the conduct was so egregious that it deprives the defendant of a fair trial. what counsel did or failed to do had to be "of such magnitude as to thwart the fundamental guarantee of a fair trial. 437 (1968).). under New Jersey's interpretation of its own constitution. Mayberry. State v. 45.J. 76. then must show that they had a prejudicial effect on the judgment. In determining whether a defendant's right to a fair trial has been denied. Washington. Perry. 386 (1996). State v." State v.J. 419. Ed. 2d 674. 146. cert. 466 U. Frost. Now. requires reversal.J. Ramseur.J. New Jersey courts now follow the rule formulated by the United States Supreme Court in Strickland v.J. 428 (1964). at 32223. 58 (1987). 162 (1964))? (State v. the court should look at such factors as whether defense counsel made a timely objection. 2052. 158 N. Loftin. Ct. 106 N. 413. 43 N. Ineffective Assistance of Counsel: The old rule was that.J. However. 53 N. denied. Ct. Johnson. 938. 687. 47 . 23 L. 64 (1968). 2004. 106 N. 42 IX. Woodard. denied. 2d 453 (1969). X. whether the remark was withdrawn promptly. Fritz. 295. Prosecutor's Improper Remarks: In assessing whether prosecutorial misconduct.J. 693 (1984). Div. to warrant reversal for inadequacy of counsel. Super. Counsel "must have been so incompetent as to make the trial a farce or mockery of justice. whether the trial judge ordered the remarks stricken. 123. to show ineffective assistance a defendant must identify acts or omissions allegedly showing unreasonable professional judgment. 105 N. and whether the judge instructed the jury to disregard them. 80 L.

. 78 (1977). 1977). 15-19 (App.J. 673.J.J. 64 N. Farrell. State v. 89 S. it then decides whether the trial judge abused his or her discretion in ordering or denying waiver or disclosure. Merlino.D. appellate court renders any order it deems just. Sherman. Humphreys.. 61 N. 288. 255. Lueder. 74 N. 4. 1043.L. State in Interest of B. State v. Ass'n of Passaic. certif. In Educ. 297 (1974). 198 (1972). 230 N.J. 12. Super.S." State v.J. State v. G.J. 108 N.J.Review of Decision on Disclosure of Juvenile's Identity or Waiver of Juvenile to Adult Court: Appellate court first looks to see if the correct legal standards were applied. for the re 259 XIII. He or she may not go beyond the facts before the jury. XII. 99. Contempt Conviction: R. 13 (1982) (waiver). Inc. XI. 2:10-4 provides that every summary conviction contempt shall be reviewable on the law and the facts.J. 117 N. 1988). DePaglia. 17 (App. Div. 153 N.S. 1971). Speedy Trial: A determination by a trial judge on whether defendant was deprived of right to speedy trial should not be overturned unless "clearly erroneous..J. Ed. N.J. 379-80 (1980) (disclosure).C.A. 2A:4A-26(a)(2) waived to adult court fourteen years old and he or she committed an provides that a juvenile shall be so long as he or she is at least there is probable cause to believe act enumerated in the statute.J. 362. Div. 82 N. A prosecutor's remarks may be harmless if they are only a response to remarks by opposing counsel. denied. the Court noted that the code had created a stronger presumption in favor of waiver and puts a heavier burden on the juvenile offender to show that the case should not be waived. Ct. State v. 10. 2d 593 (1969). (App. 103 (1972). 62. State v. If 48 . An unfair attack on defense counsel can warrant reversal. 1 (1987). 60 N. 21 L.denied 393 U. 89 N. Super. and if the findings of the trial judge are supported by the evidence. Div. Super. In State v.

it can reject it only for a patent and gross abuse of discretion.S. 2A-4A-26(e) provided that a juvenile over the age of sixteen no longer has the opportunity to prevent waiver by showing the possibility or rehabilitation by age nineteen. 257 (App.. held that when a prosecutor chooses to waive a juvenile over sixteen to the adult court. In re R. A 2000 amendment to N. 418.the person is charged with a less serious offense.A. N. at 436.J. the court must waive unless the juvenile can show the probability of rehabilitation by age nineteen N. When the court reviews the prosecutor's decision. 435 (1985).S." The judge must apply the factors set out in State v. Abbati.J.J. the prosecutor must also show that the public interest requires waiver. 2A:4A-26(a)(3).C. 99 N. 2002). An appellate court must: 1) make sure Abbati standard was applied by the trial court.A.J. XIV. he or she must compile written reasons for seeking waiver and those reasons are subject to judicial review. 351 N. 248.S. and 2) (if the standard was correctly applied) affirm the dismissal unless there was a mistaken exercise of discretion. But for more serious offenses. Review of Dismissal of Indictment with Prejudice after Several Mistrials: Trial judge may dismiss with prejudice after several mistrials if he or she determines that the chance of conviction upon further retrial is "highly unlikely. 2A:4A-26(e).J. to make that determination. Super. Div.A. 49 . Id.

J. Kraft. or unless defendant and the prosecutor have entered into a postconviction agreement for a lesser term. Defendant has a heavy burden in trying to overcome prosecutor's decision not to admit to the program. Then. 153 N. 265 N. The Appellate Division uses the same. Super. and the court should reverse the prosecutor's 50 . Id. XVI. Div. the defendant must show by clear and convincing evidence that the prosecutor's decision reflects a gross and patent abuse of discretion because the facts do not support use of a specific factor or because the prosecutor overlooked facts that would indisputably constitute a mitigating factor. The trial and appellate courts must not substitute their own discretion for the prosecutor's even when the prosecutor's decision seems harsh. the court must find patent and gross abuse of discretion.J. Brimage. the prosecutor may assign points for aggravating and mitigating factors that will raise or lower the term the prosecutor will offer during plea negotiations.S. at 590. Super. in such cases.J. 1993). 2C:35-12 requires a judge. To overturn the prosecutor's decision. 326 N. N. held that when a trial judge reviews the plea offer it is the burden of the defendant to bring to the judge's attention any objection he or she has to the prosecutor's assignment of factors. XVII. 1 (1998).J. Coulter. 106. Prosecutor's Assignment Points Under Sentencing Negotiations: of Aggravating and Mitigating Guidelines for Purposes of Plea Under guidelines promulgated by the Attorney General pursuant standard to State v. Admission to Pretrial Intervention Program: Extreme deference is given to the prosecutor's decision whether to admit a defendant to PTI. 584 (App. to impose any such mandatory sentence unless defendant has entered into a plea bargain. State v. The prosecutor has the discretion to decide whether to enter into such an agreement. 112-13 (App.A.XV. 1999). Div.Review of Prosecutor's Refusal to Enter Into Plea Bargain or Post-Conviction Agreement in Drug Cases: Certain drug offense statutes impose mandatory prison or parole ineligibility terms. State v.

133 L. 2d 461. 949. 52 S. Grey. at 471. Gonzalez. 76 L. 137 N. Super. Dunn v. Ct. 468 (1984). 254 N. 65. 83 L. United States. and their decisions on whether to remove a juror for cause will not be reversed except for an abuse of discretion. (2) that the juror in question was eliminated by the exercise of defendant's peremptory challenge and that defendant exhausted his remaining challenges. at 17-18. Review of Inconsistent Verdicts: The general rule is that inconsistent verdicts will be upheld so long as there is sufficient evidence to uphold the convictions beyond a reasonable doubt." Id. To prove that the forced use of a peremptory challenge is reversible error. The judge must decide "whether the responses elicited from a prospective juror indicate a view that would prevent or substantially impair that juror's performance in accordance with the court's instructions and that juror's oath.S. Div 1992). XX. as where the jury was improperly charged and it convicted for felony murder while acquitting on the underlying felony. cert. 1129." State v. 2d 837 (1996). 359 (1932). denied. Id. State v. 356. 469 U. XIX. 57. Ct. United States v. Powell. Decision Whether to Remove Juror for Cause: Trial judges have considerable discretion in determining the qualifications of prospective jurors.S. 390. 476. 190. XVIII.decision only if defendant shows that it was arbitrary and capricious. 189. 459-60 (1994). Ed. Ct. Ed.S. 105 S. DiFrisco. 434. 300. 471. 284 U. Ed. State v. and (3) that at least one of the remaining jurors that sat on the jury was a partial juror. 147 N.J. the defendant has to show: "(1) that the trial court erred by failing to remove a juror for cause. 393. 11 (1996). the verdict cannot stand. But where the reasons can be determined.J.J. 1116 S. 516 U. 4. 309 (App. Decision on Whether to Dismiss Indictment and Prosecutor's Instruction to Grand Jury as Basis for Dismissing Indictment: 51 . But that applies only when the reasons for the inconsistent verdicts cannot be determined.

196 S. 475 U. or if 52 .J. or indulges in personalities without basis. supra. 89 L. at 60. 140 N.J. An "indictment should not be dismissed on this ground unless the prosecutor's error is clearly capable of producing an unjust result. 167 N. An indictment should be dismissed only on the clearest and plainest ground. 228-29 (1996). 277 N. 56 (1986). Div. State v. Ct. 336 N. 216. 59 (App. 277 (1995).J. 3:6-9(c) that the proof is "conclusive that the existence of the condemned matter is inextricably related to non-criminal failure to discharge that public official's public duty." only in exceptional cases will a prosecutor's decision on how to instruct a grand jury constitute grounds for challenging an indictment. certif. 344 (App. This standard can be satisfied by showing that the grand jury would have reached a different result but for the prosecutor's error. 51. Super. Super. or is based on partisan motives." R. State v. United States v. 319.J. 144 N. Super. 277 N." State v. because a jury verdict establishes that there was probable cause to indict. denied. 942. Warmbrun. And any defect in the Grand Jury proceeding that affects the decision to indict will be cured or rendered moot if a petit jury later convicts. where it is manifestly deficient or palpably defective. State v." The judge must strike the presentment in whole or in part if it "is false.J. Hogan. 3:6-9(a) allows a grand jury to make a presentment censuring a public official "only where that public official's association with the deprecated public affairs or conditions is intimately and inescapably a part of them.). Ed. 938. Mechanick.S. 66. 1994). Review of Assignment Judge's Review Presentment Censuring a Public Official: of Grand Jury's R. Div. Warmbrun. 635 (2001). "Because an indictment should be dismissed only on the clearest and plainest grounds. 70.A decision on whether to dismiss an indictment is left to the sound discretion of the trial judge and will be reversed only for an abuse of discretion. denied. Hogan.J. XXI. 2d 50. certif.

" And if the judge misapplies the law. Inc. 53 .other good cause appears. Super." In re Presentment of Bergen County Grand Jury. 2006).J. XXII. 165 N. Inc. Decision whether to Grant Prisoner Parole: This decision is subject to the discretion of the parole board. 3:6-9(c). v. A grand jury must never charge someone "unless the proof is conclusive. Decision on Whether a Defendant is Competent to Stand Trial: Appellate review of a decision on whether a defendant is competent to stand trial is "highly deferential. Div. 28. a decision not to release must be considered arbitrary if it is not supported by a preponderance of the evidence in the record. 391 (1961). Div. his or her exercise of discretion becomes arbitrary and the reviewing court must "adjudicate the matter in light of the applicable law to avoid a manifest denial of justice. Div. 2003). denied.J. 506 (App. R. certif.J. Spectraserv.J. 41-42 (App. XXIV. 216. 3:6-9(e) governs appellate review: "The action taken by the Assignment Judge pursuant to this rule is judicial in nature and is subject to review for abuse of discretion . ." State v. XXIII. Super. 34 N. 193 N.). N.. . Kosmin v. 529 (2000). 499. 221-22 (App. Decision Whether to Disqualify Attorney from Representing a Party: This presents reviews it de deference. 378. 329. 1984). State Parole Board.J.J." R. Super. but can be reviewed by the appellate court for arbitrariness. J. 363 N. Div. 9 (App. 2. an issue of law and an appellate court novo. The trial judge is not accorded Ries & Sons." In re Presentment by Camden County Grand Jury. 384 N.G. Moya. Since the parole eligibility statute creates a presumption that a person should be released on his or her eligibility date.

The following standards are used. 47:1A-1 also are also reviewed in the Law 54 .S. then it is better to assign responsibility to one tribunal.A.. 104 N. 51-54 (1976). Super. Pascucci v. State Highway Dept. 289 (App. 2005). Where Are Reviewed?: Decisions of Administrative Agencies Review of the action or inaction of a State agency goes to the Appellate Division.J.J. N. A. 239 (App.J. Prado v. State of New Jersey.J. 1968). 40. Vagott. Errors by Administrative Factfindings: Agencies Other than Erroneous In addition to allegedly erroneous fact findings by an administrative agency. Div. 376 N. that denial should have been reviewed by the trial court that would conduct the trial. Div.J. Actions for access to information under the Open Public Records Act. Super. even a decision of a State agency with statewide jurisdiction is better reviewed in the trial court. errors are frequently alleged in the agency's ultimate determination or interpretation of the law.the court held that the Law Division had jurisdiction over inverse condemnation cases because the Highway Department had no way to condemn land and make a record that the Appellate Division could review. 231. N. 71 N.SECTION SIX STANDARDS GOVERNING ERRORS IN CIVIL CASES ONLY I. Where the Attorney General refused to provide counsel to a state employee. But any proceeding to review the action or inaction of a local administrative agency is by complaint in lieu of prerogative writ in the Law Division. But on rare occasions. Where the ordinary rules on allocation of jurisdiction within the Superior Court would result in separate courts hearing parts of the same controversy. In Pfleger v.

or that it violated legislative policies expressed or implied in the act governing the agency (or. Agency's Interpretation Strictly Legal Issue: of Statute or Decision on An appellate court respects the agency's expertise but. 147 (2004). See Prado v. fraud or gross abuse of discretion. A party should not bring a prerogative writ action in the Law Division in order to shortcut the agency process and the Appellate Division's jurisdiction. this would also cover cases where a state agency has not take final action. 556.). 244. denied. 99 N. Director.J. 39 N. 182 N. State. not administrative. 175. Campbell v.J. 55 . interpretation of statutes is a judicial. Div. cert. 562 (1963). ____ (2006). B. function and the court is in no way bound by the agency's interpretation. corruption. General Standard Agencies: of Review on Determinations by An appellate court will not upset the ultimate determination of an agency unless shown that it was arbitrary. Special Rule Contracts: Governing Decisions on Bids in State Where the director of the state Division of Purchase and Property awards or rejects a bid. as noted at pages 14-19 above. 187-88 (App. Note that since R.J. 2:2-3(a)(2) says that every proceeding to review state action or inaction is by appeal to the Appellate Division. 253 (1985).. Hartz Mountain v. 369 N.J. of Purchase & Property. capricious or unreasonable. Keyes Martin & Co.Division because of the need for trial and factfinding. which applies this standard to the Attorney General's decision denying a state employee's request for representation when the employee is sued. D. that the findings on which the decision is based are not supported by the evidence). Super.J. the courts will not reverse absent bad faith. ultimately. Div. ____ N. C. Dep't of Civil Serv. NJSEA. v.

Div. aff'd. 323 N. refused to extend that higher standard to physicians. 449 (App.. Review of Tax Court's Decision Reviewing Decision of Director of the Division of Taxation: 56 . not arbitrary or capricious. 2001). 54 (2002). 1999). 175 N. Only proof by a preponderance of the evidence is required for them. In re Polk License Revocation. 93 (1973). In re Pennica. Super. that interpretation should be upheld. 442 (App. The courts have a "strong inclination to defer to agency action provided it is consistent with the legislative grant of power. an administrative agency interprets and applies a statute it is charged with administering in a manner that is reasonable.J.J. 569 (1982). Bureau of Sec. such charges need be proven only by a preponderance of the evidence. 90 N.J. "When 336 N. Div.J. quoted in Reck v.J. 434. Review of Administrative Regulations: The scope of the appellate court's review of administrative regulations is extremely limited. Div.J. Administrative regulations have a presumption of validity. 85. The "clear and convincing" standard is only for attorneys.Mayflower Securities Co. E. 443. Super." Blecker v.J. Atkinson v. capricious or unreasonable. Catastrophic Illness Fund. requiring proof by clear and convincing evidence. 37 N. irrespective of how the forum court would interpret the same statute in the absence of regulatory history. F. 361. Parsekian. But there has long been a different rule for attorneys. 550. Director. 64 N." Lewis v. not beyond a reasonable doubt. Div. Burden of Proof on Disciplinary Charges Brought Before Agency: Generally. G. 345 N. 143. A party who challenges them bears the burden of showing that they are arbitrary. 2001). 149 (1962). or beyond the scope of the power delegated to the agency by the Legislature. and not contrary to the evident purpose of the statute. State. Super. 36 N. of Taxation. 401 (1962). 369-70 (App. v.J.

Div. in fact." R. 17 N. But "Bare conclusions in the pleadings. 142 N.. Error in Grant of Summary Judgment: A. 97 N. All papers on file must be considered. 67 N. show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law. 67. General Rule: R. 17 N. 75 (1954). there is no real material issue. American Arbitration Ass'n. without factual support in tendered affidavits. Director. 4:46-2: Summary judgment must be granted if "the pleadings. 4:46-2. Nevertheless. Metromedia v. then summary judgment can be granted." United States Pipe & Foundry Co. of Westfield. Brill v. Co. Guardian Life Ins.The appellate court generally defers to the expertise of the Tax Court and has a limited scope of review following a determination of that court. answers to interrogatories and admissions on file. 313. whose decision the Tax Court may have reviewed. depositions. even without submitting supporting affidavits. Even though the allegations of the pleadings may raise an issue of fact. "a party may defeat a motion for summary judgment by demonstrating that the evidential materials relied upon by the moving party. if any.J. An opposing party who offers no substantial or material facts in opposition to the motion can't complain if the court takes as true the uncontradicted facts in the movant's papers. B. will not defeat a meritorious application for summary judgment. Div. 530 (1995). at 75. Peoples Bank & Trust Co. Disputed issues that are "of an insubstantial nature" cannot overcome a motion for summary judgment. considered in light of the applicable burden of proof. That is particularly true when the Director's expertise is exercised in the "specialized and complex area" of the tax statutes. supra.J. 1961). 337 (1984). 4:46-5. of Westfield.J. v. II. 399-400 (App. of Taxation. But it also recognizes the expertise of the Director of the Division of Taxation. Judson v. Super. Peoples Bank & Trust Co. 520. R. 384. together with affidavits. Judson v. if the other papers show that.J.J. raise sufficient credibility issues 'to permit a rational 57 .

supra. at 540. . that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2. R.'" D'Amato v. The trial court must not decide issues of fact: it must only decide whether there are any such issues. 17 N. of Westfield." Ibid.. 4:40-1 and 4:40-2. (quoting Brill. 1997). that sets forth "a concise statement of each material fact as to which the movant contends there is no genuine issue" with citations to the record. Peoples Bank & Trust Co. 142 N. The judge must engage in a weighing process like the one used in deciding motions for directed verdicts under Rules 4:37-2(b). 4:462(a) and (b). 109. Guardian Life Ins. Judson v. Div. when viewed in the light most favorable to the nonmoving party. Super. R.J. 58 . a 1996 amendment to the rules made "substantial changes in summary judgment procedure. Brill v. "A case may present credibility issues requiring resolution by a trier of fact even though a party's allegations are uncontradicted. supra.J." either with or without supporting affidavits. 142 N.. And the respondent must "file a responding statement either admitting or disputing each of the facts in the movant's statement." All material facts in the movant's statement will be deemed admitted unless the respondent specifically disputes them and demonstrates the existence of a genuine issue of fact. C. The judge must decide whether "the competent evidential materials presented.J. supra at 523). D'Amato. Court Rules. That rule now requires the movant to file "a statement of material facts. "when the evidence 'is so one-sided that one D. Guardian Life Ins. supra. Thus. 4:46-2 (2006)." D'Amato. are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. articulates the rule for determining whether there is a genuine issue of fact. comment on R. at 75. 305 N. If there exists a single. 114 (App. Co. 4:46-5.J. at 540. Moreover. .factfinder to resolve the alleged disputed issue in favor of the non-moving party. Current N. Brill v.J. unavoidable resolution of the alleged disputed issue of fact. Co. supra. at 115. ." Pressler.

the standard for deciding the appeal is as set out in previous section. Prudential Prop. unless the court grants leave to appeal. together with all legitimate inferences therefrom favoring the nonmoving party. 162. Ins. the trial court should not hesitate to grant summary judgment. The appellate court can dismiss the appeal or can grant leave to appeal nunc pro tunc if appellant has failed to apply for leave. it then decides whether the lower court's ruling on the law was correct. & Cas. . R. the evidence submitted by the parties on the motion. R. Error in Judgment: Grant or Denial of Civil Party's Motion for When an appellant claims that the judge erroneously denied an order for judgment. IV. would require submission of the issue to the trier of fact. denied. E." The Brill standard. 307 N.). III. Id. 154 N.J." Ibid. 608 (1998). 167 (App. Co. 2:2-4. has been followed for some time in Federal and many state courts. the issue for the trial judge and the appellate court is the same: could the evidence. as cited in Brill. If there wasn't. Local 80-A. as articulated in the amendment to the rule. 2:2-3.party must prevail as a matter of law.' . United Cannery Maintenance v. Super. after Brill was decided. In fact. 264. Boylan. Div. If leave is granted. 16 N. 265 (1954). 4:46-2(c) was amended in 1996 to add the following sentence: "An issue of fact is genuine only if. considering the burden of persuasion at trial. the court uses these same standards: it decides first whether there was a genuine issue of fact.J. v. Error in Denial of Summary Judgment: Denial of summary judgment is an interlocutory order and is not appealable until final judgment has been entered. R. . 59 . On appeal. at 53040.J. certif.

116 N.J. giving plaintiff the benefit of all his or her allegations and all favorable inferences. 322 (1974). Sharp Electronics Corp. 5 (1969). State. 316. According to Dolson v. 4:40-2(b). 739. certif. sustain a judgment in favor of the party opposing the motion? R. Group.J. 125 N. R. 2. 55 N. R. 316.J. Div. and opportunity should be given to amend if necessary. R. 4:37-2(b). 4:40-1. R. 4:37-2(b). The standard is the same for jury and non-jury trials. Div. State. if reasonable minds could differ. 11 (1977)). 11 (1977)). 4:6-2(e) (see Burg v. 243 (App. 60 . Printing Mart-Morristown v. But the reviewing court must search the complaint "in depth and with liberality" to see whether the basis for a cause of action may be found even in an obscure statement of a claim. denied. R. 746 (1989). R. 64 N.J. 319-20 (App. 1973). A motion to dismiss a complaint for failure to state a cause of action. Dolson v. 319-20 (App.J.J. the motion must be denied. the standard applies to: motion for dismissal for failure to state a cause of action.J. 147 N. Anastasia. Hartford Ins. 75 N. motion for judgment at close of all evidence. 4:37-2(b). Super. certif.. 4:6-2 (see Burg v. a cause of action has been made out. Lyons v. 2. 55 N.). Super. This means: accepting as true all evidence supporting the party opposing the motion and according him or her the benefit of all favorable inferences. must be denied if. 147 N. motion for judgment notwithstanding the verdict. Div. The inquiry is limited to examining the legal sufficiency of the facts alleged on the face of the complaint.). 75 N.J. denied. 239. denied.J.together with legitimate inferences that can be drawn from it. Anastasia. certif. motion for judgment at close of plaintiff's case. 5 (1969).

302. Dolson v. 2. of Sea Girt. unreasonable or capricious. Board of Adj.J. 368 (1970). B. It gives deference to the municipality's broad discretion and reverses only if the municipal action was arbitrary. Booth v. of Rockaway. Board of Adj. Error in Trial Court's Upholding or Reversing Decision of Municipal Body: A. Then a rebuttable presumption arises that the municipality has properly exercised its discretion. 2. capricious or unreasonable. 268. Anastasia. for example a decision to grant a variance. 368 (1970).J. v. 56 N. Board of Adj. the trial judge starts by recognizing that the Legislature has vested the municipality with discretion to make the decision involved. When he or she reviews any decision where the municipality was allowed to exercise discretion. General Rule: 1. Board of Adj.J. 55 N.. 362. nature or extent of the evidence. 50 61 . C. Board of Adj. v. Procedural Background: In some cases the trial judge acts as an appeal court to review a decision of a municipal body. 56 N. Booth v. 45 N. Kramer v. the trial court may not substitute its judgment for that of the municipal body unless it is proven that the board's action was arbitrary. of Rockaway.J. 306 (1967). Inc. Inc. V. See. 5-6 (1969).Note: Neither trial nor appellate court is concerned with the weight. worth. 296-97 (1965). Appellate Review: The appellate court makes the same kind of decision the trial court made. e. Therefore. Examples are review of a decision to condemn land and review of a zoning plan or ordinance. of Madison. 50 N. 362. 3. Harvard Enterprises. Harvard Enterprises.g.J. of Madison.

J. the applicant must show and the municipal body must specifically find. Id. 62 . If the governing body has jurisdiction over the appeal. the board of adjustment grants a (d) variance. either (1) hardship or (2) that the use would promote the general welfare because the proposed site is particularly suited for it. Id. 300-01 (1981). 598. at 21-23.J. Evesham Zoning Board of Adj.J. which typically involve use variances. are supported by the record. Board of Adj. at 22-23. 45 N. Illes v. There must be specific findings that would reconcile the grant of the variance with the omission of the proposed use from the zoning ordinance. v. Counc. 1985).A. for applications heard N. 609 (Law Div.J. Evesham.S. 203 N. 268. supra. of Sea Girt. the Appellate Division and the Supreme Court then apply the general standard of review and determine whether the findings and conclusions of the governing body.. N.J..N. it reviews the record and makes de novo findings and conclusions. Super. The Rule in Zoning Cases: The general rule applies to judicial review of decisions by municipal bodies in zoning variance cases. 86 N. 295. If. not the board of adjustment. Under the municipal land use law. as the case may be. the municipal body is given less discretion with respect to that prong of the negative criteria that requires the municipal body to determine whether the variance will substantially impair the intent and purpose of the master plan and zoning ordinance. 40:55D-17 (a) & (d). 86 N. 4 (1987). 302. and only if. makes the final decision in all variances except those governed by N. the planning board or the zoning board of adjustment. D. Zoning Board of Adj. of Edison. The trial court. N. 296-97 (1965). 306 (1965). 40:55D-1 to -136. the governing body may permit appeals to it by objectors. Where an applicant seeks a use variance and does not show that the use would inherently serve the public good (such as a school or hospital). Evesham Tp. 1. Medici v.J. 107 Moreover. after the date of the Medici decision.S. at 302.J. It is not required to affirm merely because the board of adjustment did not act arbitrarily. 40:55D-70(d).S.J.J.A.A. Kramer v. BPR Co.

326 (1957). 375 N. Super. height variances (Grasso v.. 221 N. Cherney v. aff'd 24 N.J. 342 N. such as for site plans. For these types of applications to any or the 63 . deviations from density requirements (Grubbs v.J. 89. 144-45 (App. 1987). Super..J. 1999)). 388 ((App.J. 563 (App. Div. 567. of Adj. of Verona. Slothower. of Matawan. subdivisions conditional uses. Zoning Bd. of Adj. E. 3) inherently beneficial uses (Sica v. of Hamilton Tp. Borough of Verona. 49 ((App. 160 (1992)). where the municipal body has not made a discretionary decision but has merely interpreted an ordinance. 398 (1990)). 416 ((App.J. Super. of Wall. the courts have not applied Medici's enhanced-proof standard in the following situations: 1) expansions of existing uses: "Medici's enhancedproof requirement focused on variances for new uses rather than on expansions of existing ones" (Burbridge v.Borough of Spring Lake. Planning Bd. Westwood Bd. 71. 122 N. 2004)). 75 (App. the planning board is often called upon review applications which do not call for variances. 41 N. Grancagnola v. 138 N. Governing Body of Mine Hill. Div. 578 (1991)). Jantausch v. Super. floor area ratio (FAR) variances (Randolph Town Ctr.J. 141. Super. 1994)). 1987). 41.. Exceptions to the General Rule: There are two exceptions to the general rule requiring that a court defer to the municipal body's discretion and reverse only for arbitrariness. Bd. Div. no deference need be given since a court can interpret any law as well as the municipality can. First. 285.J. 152. Super.J. 551. 5) variances based on economic hardship (Eagle Group v. Planning Board of North Bergen. 2) bulk variances: "[T]he grant of bulk variances does not generally require the enhanced quality of proof concerning the negative criteria that is mandated for use variances" (North Bergen Action Group v. Div.However. 117 N.J. 2007)).J. 389 N. Assocs. Second. 127 N. Super.J. Div. 377. 96 (Law Div. 4) conditional uses: the Medici standard is "plainly inappropriate" in such cases (Coventry Square v. Div. 412. Board of Adj. 296-97 (1994)). 1956). 376. 221 N. of Adj.J. 274 N.

Brunswick Planning Board. PRB Enterprises Inc.J. by ordinance. 229.J. then the planning board lacks the authority to deny approval. v. Super.J. If the developer meets those standards. 198 N.J. Generally. Inc. F. 193 N. South Brunswick Planning Bd. 575. a court gives deference to a local zoning board's decision not to approve a cell tower. Super. 257. 105 N. But if the decision not to deny permission to construct such a facility "has the effect of prohibiting the provision of personal wireless services. It gives de novo review on the record. Citta. 23435 (App. Inc. 602 (App. 156 N. Super. as in a zoning case. Sprint v. 515 (App. Div. 268-69 (Law Div. See PRB Enterprises.J. That de novo standard used by the Law Division also applies to appellate review. certif. 352 N. G.). Telecommunications Cases: The standard of review for claims brought pursuant to the federal Telecommunications Act varies depending on the nature of the claim... Upper Saddle River. it acts as it would to review decisions of boards of adjustment. 1984). 7 (1987).. Judicial review of the governing body then asks whether the board's findings and conclusions are supported by the record. Super. Municipality's Review of Rent Control Board: Where governing body reviews a decision of a rent control board. at 7. definite specifications and standards. 1978). v. 64 ." That is because the statute bars a local authority from banning service altogether.Legislature has required the municipality to adopt. Township of N. Township of Hazlet. South Brunswick Planning Board.J.J. supra. v. The court gives deference to the planning board only if the ordinance confers discretion on the board. Reid v.J. Div. denied. 105 N. with no deference afforded to the trial court's factual findings. Dunkin' Donuts of N. 1. 1985). Lionel's Appliance CtR. 513. 174 N. the court applies a de novo review that is not necessarily limited to the record compiled by the local authority. Inc. 543 (2002). v. Div.

75 N. Greate Bay Hotel & Casino. 1994). Carpenter & Morrissey. Ukrainian Nat'l. 2A:23B-24.A.J. supra. quoted in Weiss v. Where the 65 .J.S. or similar wrongdoing by the arbitrators (see N. 393.). den. Div. arbitration awards can still be vacated by a court in cases of fraud. Co. 320 N..VI.J.A. v. Now. 529 (1977). corruption. Tretina. Joseph L. 496 (1992)).A. 357-58 (1994). 135 N. 244.J. Muscarelle. 386. Inc..A.S. 129 N.). 396 (App.J. Div. Statutorily Required Arbitration: But note that the preceding rules apply only where parties have agreed to arbitration. denied. among them a mistake in the interpretation of the applicable law.S.J.J. certif. Arbitration Award: A. The Tretina Court recognized an exception to that strict standard of judicial non-intervention: "[I]n rare circumstances a court may vacate an arbitration award for public-policy reasons" (such as an arbitration award affecting child support that may not provide adequate protection for the child). at 364. Liberty Mutual Ins.S. 349. That standard was changed by Tretina Printing. 253 (App. 401 (App. Fitzpatrick & Assoc... Div. v. Super. Inc. 2A:23B-23 for other kinds of arbitrations). Urban Renewal Corp. an appellate court could vacate an arbitrator's decision for a number of reasons. Arbitrators' factual determinations are generally not reviewable by a court. But a court may no longer vacate for the arbitrator's mistaken interpretation of the law. Inc. Habick v. And awards on collective bargaining agreements can be corrected or modified for the reasons set forth in N. 149 (1999). 2A:24-8 for arbitrations of collective bargaining agreements and N.J. 151 N. v. 161 N. The Tretina standard applies to PIP arbitration.J.J. 2A:24-9. 479. Super. Super.J.. Voluntary Arbitration: Under prior law (Perini Corp. 135 N.J. and on other kinds of agreements for the reasons in N. certif. B. 275 N.

253-54 (1978). 2001). the standard of review of publicemployment arbitration in an action to confirm or vacate an award requires the court to consider the consistency of the award both with the law and with the public interest.arbitration was compelled by statute. Similarly. 20 (App.. Moreover.A.J. 4:21A-6 provides that any party dissatisfied with the result of an arbitration proceeding may demand a trial de novo. 603-04 (2007). 447-49 (App. 8.J. 2004).J.J. Super. the award must be affirmed if supported by sufficient credible evidence present in the record. Division 540 v. Div. Div. 320 N. Moreover. Grey v. Inc. 345 N. v. Mercer Cty. C.J. once the award has been confirmed. Trump Castle Assoc. R.J." In re Newark v. no party may appeal an interlocutory order that had been made by the arbitrator prior to the award. Farm-Rite. certif. Arbitration of Auto Accident Claims: N. 188 N. 596. 306. denied. 76 N. Alpha Educ. Martinelli v. 313 (App. "Procedural arbitrability" refers to whether a party has met the procedural conditions 66 . 245. Id. and the court may decide if the arbitrators' legal conclusions are consistent with the law. Ass'n.J. D. If no demand is filed. 4:21-6(a) bars review of an evidentiary ruling by an arbitrator in these cases. Improvement Auth. makes a distinction between the standards of review for an arbitrator's rulings on "substantive arbitrability" and on "procedural arbitrability. Super. "[i]t is virtually axiomatic that unlike private arbitration. 171 N. any party may move in the Law Division to confirm the award.S. 1999). 39:6A-25 requires mandatory arbitration of certain auto accident claims. Substantive and Procedural Arbitrability: Board of Educ. R. The only way to get review of such an order would be to demand a trial de novo. at 25253." "Substantive arbitrability" refers to whether the grievance is within the scope of the arbitrability clause stating what the parties have agreed to arbitrate. 367 N. The decision and award of the arbitrator is not appealable. Div. Newark Council 21. 443. 338 (2002). Super...

Review of Condominium Association's Declaration of Covenants and Bylaws: Amendments to its When a court reviews a condominium association's decision to amend its Declaration of Covenants and Restrictions. they can recommend to the Disciplinary Review Board that a specified kind of discipline be imposed. 337 N. 1:20-16.J. 443-44 (App." Ibid. The first is generally decided by the court. 162 N. Supreme Court Review of Attorneys' and Judges' Disciplinary Matters: Disciplinary matters involving attorneys are governed by R. or its bylaws. The Disciplinary Review Board considers all recommendations for discipline. Mulligan v. 437. Borodinsky. the court will uphold them if they are reasonable. Rothman. Div. at least where they were passed only by a simple majority vote of the association's members. 2001). the court should defer to the arbitrator's decision so long as it is "reasonably debatable. 302-03 (App. The Board then makes a de novo determination on the record.J.for arbitration. Issues of amount of award and manner in which eligible assets are allocated are addressed to trial judge's discretion. 1:20-1 to R. VII. 1978). Those committees must dismiss the complaint if they do not find clear and convincing evidence of unethical conduct. 293. The second is left to the arbitrator. Super. Borodinsky v. Rothman v. Panther Valley." Id. If they don't dismiss. Disciplinary matters for attorneys are heard first in the District Ethics Committees. 65 N. Div. 67 . Except in cases where the District Committee recommends the lowest level of discipline (admonition). IX. Super. and not by the board of trustees. the Board hears public argument. 219. at 604. VIII. Equitable Distribution: Issues of what assets are available for distribution and Of their value are governed by sufficient credible evidence standard.J. They are not entitled to a presumption of validity. 233 (1974).

any greater form of discipline could only be imposed by the Supreme Court after recommendation by the Board. 68 . 342. It does not give enhanced deference to the decision by applying a higher standard allowing reversal only for a patent or gross abuse of discretion because this kind of decision does not involve law enforcement policy issues.J.J. X. Counsel's Summation in a Civil Case: "[C]ounsel may argue from the evidence any conclusion which a jury is free to arrive at" so long as the language used does not go beyond the bounds of legitimate argument. "[T]he findings of fact and recommended discipline of the panel are essentially advisory. Essex County Prosecutor. 2C:51-2(a)(2) a public employee convicted of an offense "involving or touching" his or her employment must forfeit employment. 101 N. The Court's review is de novo on the written record. in a proceeding for removal of a judge from office.S.J.In all but disbarment cases. When a court reviews the prosecutor's or Attorney General's decision not to apply for a waiver of forfeiture or disqualification. the Board's decision is final.A. 1. Disbarment recommendations are automatically scheduled for review by the Supreme Court.J. Flagg v. But N.J. XI. 171 N. final determinations of the facts are made by the Supreme Court after an independent review of the record. 5 (1982). Similarly. under which the Board could only impose a private reprimand. Prosecutor's Decision not to Seek Waiver of Forfeiture or Disqualification for Public Office: Under N. 571-72 (2002). Other disciplinary actions imposed by the Board may be reviewed by the Court upon grant of petition for review or on the Court's own motion. In re Goldstaub. 350 (1985). This is a change from prior practice.A." Matter of Yaccarino. 2C:51-2(e) allows the forfeiture or disqualification based on a disorderly persons offense or petty disorderly persons offense to be waived by the court upon application of the county prosecutor or Attorney General. and the ultimate discipline to be imposed rests within the Court's sole judgment. 90 N.S. it applies an ordinary abuse of discretion standard.

258. 2002). certif. XII. The Court first ruled that the "modified business judgment rule" should be applied and set out the elements of that rule upon which the trial judge should pass. 103 n. Super. the Court set out the standard of review courts should use when evaluating whether a corporation's board of directors has properly rejected shareholders' demand to begin legal action on the corporation's behalf. 134 N. There is no need to defer to the discretion of the trial judge. Murphy. at 287. "counsel may draw conclusions even if the inferences that the jury are asked to make are improbable.J.J. Decision Grounds: on Whether to Dismiss on Forum Non Conveniens 69 . Some federal cases have held that the trial judge's decision would be a question of law." Ibid.3 (App. 173 N.G. 567 (1993). v. 356 N. 96. 175 N. Super. Moreover. Sapir. denied. In In re P. denied. XIII. it must review de novo on the record. Shareholder Litigation. Id. perhaps illogical.J. erroneous or even absurd. certif.J. 266 N. so that review in the appellate court would be de novo. 4:32-5.). 573. 590-01 (App. It then held that when an appellate court reviews the trial court's decision under either the modified business judgment rule or under the terms of R.S. Paradise Enterprises Ltd.J.E. Validity of Forum Selection Clauses: The scope of review of a trial judge's decision whether to enforce a forum selection clause in a contract is not resolved in New Jersey. Div. 286-87 (2002). 549 (2003). Div. XIV. Shareholders' Derivative Action: Rule 4:32-5 sets out the requirements for an action brought by shareholders of a corporation or other association on behalf of the association where the association itself refuses to enforce rights it could have asserted.Spedick v.

2d 674. 159. 1678. 490 (2003)). Super.P. 424. When the commitment 70 . whose decision the Tax Court may have reviewed. 443. Punitive Damages: A decision on whether to grant punitive damages is within the discretion of the fact finder.J. Ed. (quoted in In re Civil Commitment of V. 149 L. But it also recognizes the expertise of the Director of the Division of Taxation. 270 N. 63 (App. 55. 2001).). Metromedia v. 619-20 (App. N. Div. Div. Note. 339 N. 459 (App. 1994).This decision is addressed to the discretion of the trial judge because the forum non conveniens doctrine is an equitable doctrine. 164 N. It will not be overturned except for an abuse of discretion.. denied. 431. Super. 313. Super. Kurzke v.J. 685 (2002). 1683." In re Commitment of J. XVII. Kirkman. Ct.A. Cooper Industries v. 532 U. Rather. Director.J. Div. 165 (2000). 596.S." That decision is given "'utmost deference' and modified only where the record reveals a clear abuse of discretion. the appellate court must review the issue de novo. Maul v. 121 S. Decision on Whether to Civilly Commit a Defendant Pursuant to the Sexually Violent Predator Act: This decision is discretionary and "review of a trial court's decision regarding a commitment is extremely narrow. Review of Tax Court's Decision Reviewing Director of the Division of Taxation: Decision of The appellate court generally defers to the expertise of the Tax Court and has a limited scope of review following a determination of that court.. Leatherman Tool Group. XV.J. that the issue of whether punitive damages are so excessive as to violate the Fourteenth Amendment to the United States Constitution is not resolved by using the abuse of discretion damages.J. 177 N..J. That is particularly true when the Director's expertise is exercised in the "specialized and complex area" of the tax 97 statutes. 357 N. certif. however. XVI. and such a decision will therefore be reversed only for an abuse of discretion. of Taxation. Div. Nissan Motor Corp. 337 (1984).

St." In re Commitment of W. 74 N. at 595). McRae v. Decision on Whether to Remove a Fiducuary: Removal of a fiduciary. CSI Liquidating Trust. Decision on How a Malpactice Case Should be Tried: Often.Z. unless the parties disagree. Div. Fairmont Food Co. 2002) (citing Baxter v. Garcia v. 349 N.J. 598 (1977)). a malpractice case is proven by having a "trial within a trial. Review of Trial Court's Decision on Whether a Jury Verdict on Punitive Damages is Excessive: No special deference is given to a trial judge's decision on whether punitive damages are excessive. Ibid. Super. 179 N. National State Bank. XX. Super. 132 (2002). Michael's Med.J. Div.J. 74 N. Then the final determination of the court is discretionary and is entitled to deference. 361 (2004). XVIII. the court is bound by the same strictures as a trial court. 109. XXI. 2002). 71 . 597 (App. Div. Unless a jury's award of damages is so disproportionate to the injury and resulting disability the trial judge should not disturb the award. 353 N. supra. 343. is within the discretion of the judge and will not be disturbed on appeal absent a manifest abuse of discretion. 360 (App. such as a trustee under a will. (citing Baxter..J. Kozlov. That threat must be proven "by demonstrating that the individual has serious difficulty controlling sexually harmful behavior such that it is highly likely that he or she will not control his or her sexually violent behavior and will reoffend.is pursuant to the Sexually Violent Predator Act the State must prove that the person is a threat to the health and safety of others because of the likelihood that he or she will engage in sexually violent behavior. 205 N.J. 173 N.J. Wolosoff v.J. 1985). 583.." But that is not the only way to prove such a case.. 588. Super. 152-53 (App. Ctr. Baker v. 349. Trial judges should not become involved in determining how such a case is to be tried. Decision on Whether to Grant Remittitur: In determining whether the grant or denial of remittitur was proper. XIX. 145.

Super. aff'd. 349.. 72 . 1963). 357-58 (1994). Super. 253-54 (1978). 5. of Civil 556. 2001). Improvement Auth.J. 320 N. Div.. Arbitration. Liberty Mutual Ins. 135 N. 3. 253 (App. Ukrainian Nat'l Urban Renewal Corp. 2.J. Inc. (App. Fitzpatrick & Associates. v. 20 (App. Super. 2001). 336 N.J.. Div. Div. 345 N. 529 (1977). Discretionary Decision Campbell v. 64 N. Administrative Agency. Div. Joseph L.J. Dep't Service. 245.J. 93 (1973). v. 396 151 N. v. certif. Lewis v. Super. 562 4. Arbitration Award Habick v.J. Tretina Printing. Administrative Agency. 85. Inc.J. Catastrophic Illness Fund... 1999). 1999).J. 449 (App. Super. 8. Mercer Cty. (App. 75 N. 369-70 (App. 361. 320 N. Interpretation of Law Mayflower Securities Co. Administrative Agency.J. 76 N. Inc. of Taxation.J. 175 N. Co. Div.J. denied. Statutorily Required Division 540 v.SECTION SEVEN SUMMARY STANDARD AUTHORITY 1. 39 N. Newark Council 21. Bureau of Securities. 54 (2002). 443.). Div. 244. 386. Review of Regulations Reck v. Director. In re Newark v. Div. Muscarelle.

2001). Super. 259 (App.J. Credibility Findings 10.J.J. 60 N. 22 N. Ferdinand v. Super.J. 198 (1972). Super.J. Competence 73 . 443-44 (App. v. Expert. 132 (2002). 1997). 233 (1974). 437. In re Commmitment of J. 1971). certif. Rothman v.5 (1982). Inc. N. In re Commmittment of W.. 1978). D'Amato by McPherson v. Super. 65 N. (App. 492 (1956). D'Amato. 27.. In re Education Ass'n of Passaic. Excluding or Admitting Benevenga v. 325 N. 64 (1993). certif. denied. 427.Z. 90 N. 1999). Super. 90 N. 443-33 (2001). Div. 115 (App. 255. Borodinsky v.6. Rothman. Div. Civil Commitment 9. Carey v. Evidence. 219.. 102 N.J. Collier. 132 N. 117 N. 305 N. 443. Ins.J. 1. 7. In re Yaccarino. Equitable Distribution 13. 14.J. 1.J. 482. 173 N. Div. Borodinsky. and Judges 342. 350 (1985). Attorneys' Fees G5 8. In re Goldstaub.J.J. Agric.P. 167 N. 109. Attorney Discipline In re Goldstaub. 79 (2000). denied.J.Y. Digregorio. 459 339 N. Discipline of Attorneys 12.J.J. 109. Div. 163 N. 162 N. Contempt 11. 5 (1982). Co of Watertown. Div.J. Packard-Bamberger & Co.. 32 (App. 44. Lovett.

8990 (App. Gonzales. 325. 581 (1973). 146. 121 (App. Div. Guilty Plea.J. Div. 668.J. 300. Johnson.J. R. 112. 340 (1971). Div. 21. 16. Refusal to Accept State v. v. Forum Non Conveniens 19. 34 N.). 463 (1999). 2:10-2. Motion to Withdraw State v. 1964). 162 (1964). 117 Super. Guilty Plea.. Daniels. State v. 80 L. 85 N. Close v. Deutsch. Board of Review. Ineffective Assistance of Counsel Ct. Locurto. 62 N. Ed. State v. 1994).. Factfindings of Comp. v.J. 159. 3:21-1.J. 674 74 . 165 (2000)..J. 487 (App. 54 (App. Judge 18. of Medical Assistance. Co. Alsan Masons Inc. 42 N. Rova Farms Resort Inc. Factfindings of Judge State v. N.S. 2002). 46. Super. N. Kordulak Bros. State v. DeAngelo v.D.J. Investors Ins. Factfindings of Agency 17. aff'd o.b. 22. 65 N. Super. Div. 254 N. 157 N. 466 U. S. 599 (1965). Harmless Error R. Macon. N. 164 N. Div..J.J. Zielenski v.J.J. of Am. Rhein..15. 104 S. 483. 44 589.J. Kurzke v. 485 (App. 190.J. 2052. 474 (1974). 122 N. 88. 57 N. 349 N. Nissan Motor Corp.J. Div. 303 (App. Strickland v. 464. 276 Super. Super. State v. 1971). Super. 2d 23. Acceptance 20. 19 1992). Washington. Guilty Plea. Div. 198 (1961).

31. 2d 366 (1965).). Ct.J. Lueder. 42. 10 L. Dismissal After Several Mistrials 105 State v. 420 (1973). 137 343. 362. Williams. 108 N. 546-53 (App. 61 (1951). 293 (App.J. Massie. 74 N. Request to Read to State v.. 7 25. Vanelli. Super. 55. Super.J. Div.J. Motion to Sequester R. Jury. Eberhardt v. Wolf. 2d 1075 (1963). certif. DiFrisco. N. Influences 27. 487 (1999).J. N. Walker. 418. 86 S. Removal of Juror for Cause State v.J. Identity State in Interest of B. 1:8-6. State v. 32. Wilbely. 176. 484 (1963). Panko v.S. 471 (1994). and 382 U. 28. Ed. State v.G. 379-80 (1980). denied.D. Abbati.J. State v. State v. 185 (1965). 62. 359-60. 555 (Law Div. Jury. 1924. 1971). Juvenile.J. 162 N. Waiver 75 . 1972). R. State v. Juvenile. aff'd sub. Div. 63 N. 183 S. Jury. Flintkote N.C.J. 115 N. Jury.. 535. Ed. 855. Indictment.J. Pessini v.(1984).. Request to Send Back for more Deliberations State v. Jury. nom. Ct. 30. 964. 44 N.J. 24. 58 (1987). 78 (1977). 436 (1985). 322 N. 374 U.L. cert. 449. 29. 82 N.J. 121 N. 39 N. Co. 471.J. 15 L. 1 (1987). Jury Charge 26.J. Super. 99 N.S. denied. Fritz.

33.

Motion to Acquit

R. 3:18-1; State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Sugar, 240 N.J. Super. 148, 153 (App. Div. 1990); State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div. 1970), certif. denied, 58 N.J. 335 (1971). State v. Conklin, 540, 545 (1969). 4:37:2(b); R. Anastasia, 55 (1969). 54 N.J.

34.

Motion for Adjournment

35.

Motion to Admit Photos

36.

Motion for Civil Judgment

Dolson N.J. 2,

v. 5

37.

Motion to Dismiss

R. 4:40-1; R. 4:40-2; 4:37(2)(b); Dolson Anastasia, 55 N.J. 2, (1969).

R. v. 5

38.

Motion for Mistrial

State v. DiRienzo, 53 N.J. 360, 383 (1969); Greenberg v. Stanley, 30 N.J. 485, 502 (1959). Fusco v. Newark Bd. of Ed., 455, 462 349 N.J. Super. (App. Div. 2002). Jadlowski v. Owens-Corning, 199, 221 283 N.J. Super. (App. Div. 1995).

39.

Motion for Reconsideration

40.

Motion for Recusal

76

41.

Motion to Vacate Judgment (General Rule)

Housing Authority of Town of Morristown v. Little, 135 N.J. 274, 283 (1994).

42.

Motion to Vacate Judgment (R. 4:50-1(f))

First Morris Bank and Trust v. Roland Offset Service, Inc., 357 N.J. Super. 68, 71 (App. Div. 2003). State v. Locurto, 157 N.J. 463, 471-02 (1999); State v. Sparks, 261 N.J. Super. 458, 461-62 (App. Div. 1993); State v. Johnson, 42 N.J. 146, 157 (1964).

43.

Municipal Court Reviewed

44.

Municipal Decisions (general discretionary)

Harvard Enterprises, Inc. Board of Adj. of Madison, N.J. 362 (1970); Kramer Board of Adj. of Sea Girt, N.J. 268, 296 (1965).

v. 56 v. 45

45.

Municipal Decisions (interpretation of ordinance) Jantausch v. Borough of Verona, 41 N.J. Super. 89, 96 (Law Div. 1956), aff'd, 24 N.J. 326 (1957); Cherney v. Zoning Board of Adj. of Matawan, 221 N.J. Super. 141, 144-45 (App. Div. 1987). Municipal Decisions (site plan, subdivision)

46.

PRB Enterprises, Inc. v. South Brunswick Planning Board, 105 N.J. 1, 7 (1987); Dunkin' Donuts of N.J. Inc. v. N. Brunswick, 193 N.J. Super. 513, 515 (App. Div. 1984).

47.

Municipal Decisions (zoning cases)

Sica v. Board of Adj. of Wall, 127 N.J. 152 (1992); Medici v. BPR Property Co.,

77

107 N.J. 1 (1987); Evesham Tp. Zoning Board of Adj. v. Evesham Tp. Council, 86 N.J. 295, 300-01 (1981); Grubbs v. Slothower, 389 N.J. Super. 377, 388 ((App. Div. 2007). 48. Plain Error R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971); State v. Hock, 54 N.J. 526, 538 399 (1969), cert. denied, U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970); State v. Melvin, 65 N.J. 1, 18-19 (1974); State v. Simon, 79 N.J. 191, 206 (1979). Musto v. Vidas, 333 Super. 52, 74 (App. 2000). N.J. Div.

49.

Prejudgment Interest

50.

Pretrial Intervention

State v. Kraft, 265 N.J. Super. 106, 112-13 (App. Div. 1993). R. 3:22-1 to R. State v. Preciose, 451, 459-64 (1992). 3:22-12; 129 N.J.

51.

Post-Conviction Relief

52.

Prior Appeal

State v. Cusick, 116 Super. 482, 485 (App. 1971).

N.J. Div.

53.

Prosecutor's Remarks

State v. Frost, 158 N.J. 76, 83 (1999); State v. Ramseur, 106 N.J. 123, 322 (1987). Maul v. Kirkman, 270 N.J. Super. 596, 619-20 (App. Div. 1994).

54.

Punitive Damages

55.

Sentence, Appeal by Defendant (Excessive Sentence) State v. Sainz, 107 N.J. 283, 292 (1987); State v. Hodge, 95 N.J. 369, 375; State v. Roth, 95 N.J. 334, 363-65

78

(1984); State v. Winter, N.J. 640, 647 (1984). 56. Sentence, Appeal after Plea

96

State v. Sainz, 107 N.J. 283, 292 (1970). N.J.S.A. 2C:44-1F(2); R. 3:21-4(g); State v. Sanders, 107 N.J. 609, 616 (1987); State v. Roth, 95 N.J. 334, 344-45 (1984). R. 3:2-4; State v. Kunz, 55 N.J. 128, 144 (1969). In re P.S.E.&G. Litigation, 173 286-87 (2002). Shareholder N.J. 258,

57.

Sentence, Appeal by State

58.

Sentencing Procedure

59.

Shareholders Derivative Suit

60.

Speedy Trial

State v. Merlino, 153 Super. 12, 17 (App. 1977).

N.J. Div.

61.

Summary Judgment

R. 4:46-2; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954); Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995).

62.

Trial Court's Interpretation of Law

Manalapan Realty v. Manalapan Tp. Comm., 140 N.J. 366, 378 (1995).

63.

Weight of Evidence (New Trial)

R. 2:10-1; Anastasia, 55 (1969).

Dolson N.J. 2,

v. 6-8

79

An appeal can be dismissed where the appellant has willfully evaded the lower court's orders. 175 (1968).J.J. 513 (1974). 186. 162. 1971). not from oral opinions. 2049. 8.). No party has the right to urge specious arguments created by piecemeal use of the evidence. Super. Middle Dep't Insp. Howard Sav. denied. 598. State v. Home Ins. 2:10-5.J. 506-08 (App. 971. 504. 3. 1973). It is essential for a party on appeal to present an adequate legal argument. D'Arc v. Super. 76 N. Div. 64 N.J.J. Appeals are taken from judgments. 85 N. D'Arc. Super. 1975). 397. Co.J. 494. Hild. 10. denied. 294. Inst. 1977).SECTION EIGHT: GENERAL PRINCIPLES GOVERNING APPEALS 1. 451 U. although it frequently remands instead. of Tp. certif. 487 (1980). 400 (App. 150 N. Div. 1977). Peep. 51 N. R. The appellate court can make fact findings if the trial court failed to do so.J.S. Glaser v. 154 N.. 101 S. 7. cert. Div. Div. 2d 350 (1981). v. Isko v. 296 (App. Planning Bd.J. 56 (App. 4. 189 (App. State v. Ed. Inc.J. Miraph Enterprises. 49. An order or judgment will be affirmed on appeal if it is correct. Div. 9. v. 16 (App. 68 L. certif. 1977). denied. Kyles. Board of Alcoholic Beverage Control for Paterson. A brief which fails to comply with appellate rules will be cause for sanctions imposed on the appellate attorney personally. Agency v. Div. Downes. 499 (1961). 132 N. 2. If evidence submitted on appeal was not before the trial court. 234 (1978). State v. Super. Super. 175 N. of Livingston. 5. 113 N. Super. even though the judge gave the wrong reasons for it. Ct.J. 601 (App. denied. 6. the appellate court will not consider it. 126 N. 148 N.J. 34 N. Odom. Div. Super.J. Only a party aggrieved by a judgment may appeal from it. certif. 80 .

. State Parole Board. Super. 62 (App. v. 244 N. 238 N. Trial courts and state agencies are free to disagree with decisions of appellate courts. and the court denied the motion. Super. Cusik. 12. 57. N. 1971). 482.J.J. Super. Jaguar Cars. 2003). 10. 1990). Inc. 363 N. plaintiff was allowed to appeal the denial even though the judge had later allowed plaintiff to voluntarily dismiss with prejudice. but they are not free to disregard them. Kosmin v.J. A litigant satisfied with the judgment cannot have an advisory appellate evaluation of an alleged interlocutory error. State v. 116 N. Mack Auto Imports. Div. 258-59 (1990). even if of constitutional dimension. Div. 254.But where plaintiff moved for dismissal of its own complaint without prejudice. Casel. 40 (App. "A party may not seek appellate review of an adverse interlocutory order without seeking relief from the outcome of the litigation as embodied in the judgment." Magill v. Super.J. Inc.J. If an issue has been determined on the merits in a prior appeal it cannot be relitigated in a later appeal of the same case. 28. 11. Div. 485 (App. 81 .