In a remarkable order, the New Jersey Supreme Court granted reconsideration of its prior per curium order. The defendant was convicted of killing her child. After the trial, she moved for an acquittal under Rule 3:18-2. The trial court denied that post-verdict motion. On appeal, the defendant argued that the trial court erred in its scope of review. The Appellate Division affirmed. In the per curiam order, all six Supreme Court justices agreed that the trial court and Appellate Division applied the wrong scope of review. According to the justices, the trial court was obliged to consider all evidence presented, not merely the State’s evidence. However, three judges found the evidence sufficient while the other three found it insufficient, leading the Supreme Court to affirm. The defendant did a marvelous job in petitioning for reconsideration. She argued that the unanimous holding that all prior courts had applied the wrong scope of review controlled and that the Appellate Division’s ruling, therefore, should not have been upheld. The Supreme Court held that the “defendant rightfully asserts that adjudicating her guilt or innocence by using a concededly erroneous ruling as a tiebreaker denies meaningful judicial review. Though there are countless instances of this Court resolving appeals with an equally divided affirmance, there are no such examples of the Court doing so where the decision to be affirmed is unanimously judged to apply incorrect legal standards.” The reargument is set for late October with the Honorable Jose L. Fuentes to sit as the seventh justice. Bravo to counsel for the defendant.
