Appellate Division pursuant to R. 2:2-2(b) and 2:3-2;
and (b) to the appropriate appellate court from (1) a
judgment of the trial court dismissing an indictment,
accusation or complaint, where not prohibited by the
constitution; (2) a pretrial order of the trial court in
accordance with R. 3:5 (search warrants); (3) a judgment
of acquittal n.o.v. following a jury verdict of guilty; (4) a
judgment in a post conviction proceeding collaterally
attacking a conviction or sentence; (5) an interlocutory
order entered before, during or after trial, or (6) as
otherwise provided by law.
A. Dismissal of Indictment, Accusation or Complaint
Whether the State may appeal from such dismissal is
usually governed by whether the appeal will violate the
Double Jeopardy clause, a subject dealt with in the topic
on DOUBLE JEOPARDY.
B. Appeal from Judgment of Acquittal
Again, the appeal from a judgment of acquittal is
governed by double jeopardy principles, and are
normally not allowed unless the matter can be construed
as civil. Even though a sanction may be labeled civil, that
does not foreclose the possibility that it has a punitive
character and may be considered quasi-criminal in
nature. The factors used to determine whether a case is
criminal are listed in State v. Widmaier, 157 N.J. 475
(1999), which held that a charge of refusal to take a
Breathalyzer test is quasi-criminal, and the State was
barred from appealing an acquittal.
C. Appeal from the Grant of New Trial
The appealability of the grant of a new trial is
dependent on the basis for the action. As long as the
reason is not based on the sufficiency of the evidence, but
rather on the weight of the evidence or newly discovered
evidence, R. 3:20-1, there is no double jeopardy
preclusion. See State v. Sims, 65 N.J. 359 (1974); compare
Tibbs v. Florida, 457 U.S. 31 (1982) with Hudson v.
Louisiana, 450 U.S. 40 (1981) and Burks v. United States,
437 U.S. 1(1978).
D. Appeal from Sentence
The State may not appeal from lenient but lawful
sentences imposed on third or fourth degree crimes. State
v. Davidson, 225 N.J. Super. 1 (App. Div. 1988), certif.
denied, 111 N.J. 594 (1988). It may, however, appeal
from a downgraded sentence one degree lower imposed
for crimes of the first or second degree pursuant to
N.J.S.A. 2C:44-1f, provided that it files the appeal
within 10 days; otherwise the right of appeal is lost. State
v. Farr, 183 N.J. Super. 463 (App. Div. 1982); State v.
Watson, 183 N.J. Super. 481 (App. Div. 1982). While
stay is mandatory (and possibly automatic) under the
statute and R. 2:9-3(d), the rule requires that bail
pursuant to R. 2:9-4 shall be established as appropriate
under the circumstances. To obviate double jeopardy
preclusion, the prosecutor should expressly state on the
record at sentencing an intent to appeal in order to place
defendant on actual notice, and the appeal papers should
be filed expeditiously. Furthermore, the prosecutor
should facilitate the granting of bail, and notwithstand-
ing the statute, obtain a stay of the judgment from the
trial court, or if necessary from the Appellate Division. If
a non-custodial sentence is imposed, the prosecutor
should also take steps to notify probation of the appeal to
prevent the defendant from commencing probation
before the appeal is perfected. Pursuant to R. 2:9-3(d),
however, the defendant may elect to execute the sentence
stayed by the State’s appeal In State v. Sanders, 107 N.J.
609 (1987), the Supreme Court upheld that the State’s
right to appeal pursuant to N.J.S.A. 2C:44-1f,
concluding that it does not violate double jeopardy,
despite the fact that defendant remains incarcerated for
up to ten days while the State perfects its appeal. Because
the Code of Criminal Justice expressly provides for such
appeal of a lenient sentence, a defendant cannot
legitimately expect the sentence is final when
pronounced. Consequently, the defendant is not
automatically entitled to bail pursuant to R. 2:9-3(d)
during the ten day period within which the State is
required to perfect its appeal. Sanders overruled the
decision in State v. Williams, 203 N.J. Super. 513 (App.
Div. 1985) (holding that defendant must be apprized at
sentencing of the State’s right to appeal and the
applicability of the election and waiver provisions of R.
2:9-3(d)). See State v. Christensen, 270 N.J. Super. 650,
656 (App. Div. 1994).The State cannot appeal as lenient a sentence that it
has recommended, or where it has waived its right to take
a position at sentencing, or waived its right to appeal.
State v. Morant, 241 N.J. Super. 121, 142 (App. Div.),
certif denied, 127 N.J. 323 (1990); State v. Partusch, 214
N.J. Super. 473, 476 (App. Div. 1987); See also State v.
Ferrara, 197 N.J. Super. 1 (App. Div. 1984); State v.
Paterna, 195 N.J. Super. 124, 126 (App. Div. 1984).
Partusch permits the State to appeal when a probationary
or non-custodial term is imposed where the plea bargain
involved a downgrade from a second to a third degree
offense. The State may not, however, appeal from
juvenile sentences. In State in the Interest of R.P., 198 N.J.