The Supreme Court Will Address “Not Raised Below,” and Three Criminal Appeals

The Supreme Court has announced that it has granted certification in three cases, all criminal matters, and that a civil case will be before it on an appeal as of right.  Here are the details.

The civil case, a class action, is Chirino v. Proud 2 Haul, Inc.  The question presented there, as phrased by the Supreme Court Clerk’s Office, is “Were defendants barred from challenging the amount of fuel tax damages awarded on partial summary judgment, where they raised the issue after the damages had been quantified and addressed by the trial court, and only on appeal?”

The Appellate Division, in an unpublished opinion, split 2-1, and this case is thus before the Court as of right, based on the dissent.  The majority declined to consider the issue, given the timing of its being raised.  The dissenting opinion would have addressed the issue.  The Supreme Court’s decision may provide clarity as to when issues not raised below will be considered, though the matter could be decided without specifically addressing that.

In State v. Bryant, the question presented is “Under the circumstances presented, did the plea agreement and related proceedings entitle defendant to a sentence of drug court probation or to withdraw his plea?”  Both the Law Division and the Appellate Division, the latter in a two-judge unpublished opinion, rejected defendant’s position.

State v. Patel presents this question “In this matter seeking post-conviction relief pursuant to State v. Laurick, 120 N.J. 1 (1990), was defendant required to show that, had he been notified of his right to counsel in a prior matter, the result of the proceeding likely would have been different?”  In a two-judge unpublished opinion, the Appellate Division, applying State v. Schadewald, 400 N.J. Super. 350 (App. Div. 2007), ruled that defendant had to show that the result would have been different, and that no such showing had been made.  That decision affirmed the result in the Law Division.

Finally, in State v. McNeal, the question presented is “Is defendant entitled to vacate his guilty plea based on his allegation that the trial court and counsel misinformed him with regard to the jail credits he would receive?”  In another unpublished opinion by two judges, the Appellate Division affirmed the refusal of the Law Division to allow defendant to vacate his plea.