assignment judge reverses the prosecutor for denying
consent to enrollment of defendant. R. 3:28(f). An order
enrolling a defendant in PTI over the prosecutor’s
objection is final for purposes of appeal by the State, and
is automatically stayed for fifteen days and thereafter
pending appellate review. Id.
Appeals from denial by the State Police of an
application to make a gun purchase under a previously
issued gun purchaser card are taken to the designated gun
permit judge in the vicinage. R. 2:2-3(a).
B. Appeals to the Supreme Court
The limitations on appeals as of right to the Supreme
Court are set forth in R. 2:2-1, which provides four
grounds:
- cases determined by the Appellate Division
involving a substantial question arising under the
Constitution of the United States or this State; - cases where there is a dissent in the Appellate
Division, limited to those issues in the dissent; - directly from the trial court in cases where the
death penalty was imposed and from post conviction
proceedings in such cases; - in such cases as are provided by law.
To qualify as substantial under the first ground, the
question must be substantial and not colorable. In re East
Windsor Mun. Util. Auth. v. Shapiro, 57 N.J. 168 (1970).
The question must not have been the subject of a
conclusive judicial determination, the standard is not
met if the issues involve an analysis of a particular factual
situation and application of those facts to statutory and
constitutional criteria under established principles. See,
Piscataway Association, Inc. v. Twp. of Piscataway, 73 N.J.
546, 549 (1977). It would be prudent, if the
constitutional issue may not meet the substantiality
criterion, to also file a petition for certification, although
an order denying certification also serves to summarily
dismiss the appeal. R. 2:12-9. See, Deerfield Estates, Inc.
v. Twp. of East Brunswick, 60 N.J. 115 (1972).
With respect to the second ground, a petition for
certification should be filed to raise any issue not
subsumed within the dissenting opinion. A motion for
summary disposition may also be filed pursuant to R.
2:8-3(a), and such a motion will toll the time for further
briefing. A dissenting vote from denial of motion for
rehearing does not qualify to create a right of appeal, even
where a constitutional issue is belatedly raised. State v.
Smith, 59 N.J. 297 (1971).The third ground is cases in which the death penalty
has been imposed, (see also, CAPITAL PUNISHMENT,
this Digest). It is also the subject of N.J.S.A. 2C:11-3e,
requiring every death penalty imposed “shall be
appealed, pursuant to the Court Rules, to the Supreme
Court.” See State v. Koedatich, 98 N.J. 553 (1984); See
also State v. Martini, 144 N.J. 603, 607 (1996). Under
the statute the Supreme Court must also review the
penalty in terms of proportionality if requested. See In re
Proportionality Rev. Project, 161 N.J. 71 (1999); State v.
Loftin, 157 N.J. 253 (1999); State v. Ramseur, 106 N.J.
123, 324-31 (1987). The Supreme Court on April 5,
1989 also issued a Directive respecting procedures in
death cases, reproduced at 123 N.J.L.J. 970 (1989).III. APPEALS TO THE SUPREME COURT BY CERTIFICATION
Ordinarily, review by the Supreme Court of New
Jersey is discretionary and application is by petition for
certification pursuant to R. 2:12. The grounds for
certification are specified in R. 2:12-4. Certification will
be granted only if the appeal presents a question of
general public importance which has not been but
should be settled by the Supreme Court or is similar to
a question presented on another appeal to the Supreme
Court; if the decision under review is in conflict with any
other decision of the same or higher court or calls for the
exercise of the Supreme Court’s supervision and in other
matters if the interest of justice requires. It is not allowed
from final judgments of the Appellate Division except for
“special reasons.” Id. It is up to four justices to decide
what the Court wants to hear. The petition must be
signed by counsel with a certification that it presents a
substantial question and is filed in good faith and not for
purposes of delay. R. 2:12-7(a). Respondent may seek
affirmative relief only by cross-petition. R. 2:12-11.Where issues are raised on a cross-petition for
certification which were not reached by the Appellate
Division because it reversed a criminal defendant’s
conviction on a different issue, and the Supreme Court
grants certification and reverses the judgment of the
Appellate Division, the issues not reached by the
Appellate Division are preserved by the grant of
certification and may be considered by the Appellate
Division on remand from the Supreme Court. State v.
Cameron, 104 N.J. 42, 58-59 (1986).