ruling without running afoul of the Double Jeopardy
Clause.” In Wilson, a post-guilty-verdict dismissal based
on denial of a speedy trial was appealable. State v. Lynch,
79 N.J. 327 (1979). The intent of R. 2:3-1 is that
limitation of the State’s right to appeal be coextensive
with retrial bars of double jeopardy. If the State and
Federal Constitutions would allow the State to appeal a
judgment entered at trial, so would R. 2:3-1. Accord,
State v. Barnes, supra.
State v. Laganella, 144 N.J. Super. 168 (App. Div.
1976), app. dism. 74 N.J. 256 (1976), ruled that R. 2:3-
1 on its terms permits an appeal by the State from a
dismissal of an indictment only when the dismissal is
entered before or after trial. However, the rule should not
be construed to limit review of other dismissals, in
extraordinary circumstances. Where a trial judge, on
motion of a defendant, in good faith but in error dismisses
an indictment to sanction the State for a purported failure
to adhere to principles of fairness, double jeopardy
should not bar an appeal by the State.
In State v. Kleinwaks, 68 N.J. 328 (1975), the
defendant contended that then R. 2:3-1(b)(3), which
permits the State to appeal a judgment of acquittal n.o.v.
entered in accordance with R. 3:18-2, violates the
Double Jeopardy Clause. The Supreme Court rejected
defendant’s contention, holding that R. 2:3-1(b)(3) did
not violate the constitution and that the State could
appeal from a judgment of acquittal n.o.v. entered under
R. 3:18-2. The Court explained that since a guilty
verdict initially had been rendered, no retrial would be
required upon reversal. Later, R. 2:3-1(b)(3) was
amended to specify that only a R. 3:18-2 judgment
entered after a guilty verdict is appealable.
In State v. Sims, 65 N.J. 359 (1974), the trial court
granted defendant’s motion for a new trial after a jury
verdict of guilty. The State appealed, claiming that the
trial court had applied the wrong legal standard in
granting defendant’s new-trial motion. The Supreme
Court ruled that the State may seek leave to appeal any
grant of a new trial. While the Court noted numerous
policy reasons for allowing the State to do so, the Court
stated, “[W]e do not at all suggest that leave should
always be granted.”
State v. $36,560 in U.S. Currency, 289 N.J. Super.
237 (App. Div. 1996), certif. denied, 147 N.J. 579
(1997), held that the State may appeal a trial court’s
setting aside its finding of guilt when there was sufficient
evidence to support the conviction.
In State v. Lefkowitz, 335 N.J. Super. 352 (App. Div.
2000), a jury originally returned a verdict that defendant
had possessed one-half ounce or more of cocaine with
intent to distribute, a second degree crime. Then, after
the trial court specifically instructed the jury to consider
the amount of cocaine possessed by defendant, the jury
answered that the amount was less than one-half ounce.
The trial court therefore entered a conviction for third
degree possession with intent to distribute and sentenced
accordingly. The State appealed seeking reinstatement of
the “original” verdict, and the Appellate Division
dismissed the appeal. The Court held that a jury is a
deliberating jury until it is discharged and that the third
degree verdict was the only verdict in this case. The Court
noted that the New Jersey Supreme Court had not
adopted a rule that the State could appeal whenever
double jeopardy principles were not violated, rather that
the State could appeal only when the right to appeal was
delineated, which it was not in these circumstances.Generally, “an illegal sentence can be corrected [and
thus appealed] even if it means increasing the term of a
custodial sentence that defendant has begun to serve.”
State v. Eigenmann, 280 N.J. Super. 331, 337 (App. Div.
1995). Specific statutes also may authorize the State to
appeal a sentence. The right of the State to appeal from
the imposition of sentence under N.J.S.A. 2C:44-1f to a
term appropriate to a crime one degree lower, for
example, does not violate state constitutional prohibi-
tions against double jeopardy. State v. Roth, 95 N.J. 334
(1984). (See also,
APPEALS, SENTENCING, this Digest).IX. COLLATERAL ESTOPPEL AND RES
JUDICATA
Res judicata and collateral estoppel are related
concepts. See, e.g., Allen v. McCurry, 449 U.S. 90, 101
S.Ct. 411, 66 L.Ed.2d 308 (1980). Res judicata
precludes relitigation of an entire claim, while collateral
estoppel precludes relitigation of an issue previously
adjudicated on the merits. Id.; State v. Cormier, 46 N.J.
494, 505 (1966). For res judicata to apply, it must be
shown that all of the issues in dispute were determined in
a former prosecution. See, e.g., United States v. Fancher,
323 F. Supp. 1069, 1071 (D.S.D. 1971). New Jersey
case law addresses collateral estoppel as “part of the
broader field of res judicata.” State v. Cormier, 46 N.J. at
505; State v. Gonzalez, 75 N.J. 181, 186 (1977).The doctrine of collateral estoppel was regarded as
part of New Jersey’s criminal jurisprudence even before
1970, when the doctrine was ruled, in Ashe v. Swenson,