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State v. Ortiz

Decided: June 17, 1985.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
MARIA ORTIZ AND WILFREDO RODRIGUEZ, DEFENDANTS-RESPONDENTS. STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, V. MARIA ORTIZ, DEFENDANT-APPELLANT



On appeal from the Superior Court, Law Division, Essex County.

McElroy, Dreier and Shebell. The opinion of the court was delivered by Shebell, J.A.D.

Shebell

The State appeals the entry of judgments of acquittal n.o.v. following the convictions of Maria Ortiz and Wilfredo Rodriguez on charges of conspiracy to murder Maria's husband, Alfredo Ortiz, (N.J.S.A. 2C:5-2) and on Maria's conviction for his murder (N.J.S.A. 2C:11-3a). Additionally, the jury convicted Maria of hindering apprehension (N.J.S.A. 2C:29-3a(2)) and tampering with a witness (N.J.S.A. 2C:29-3a(3)). Wilfredo was also convicted by the same jury of murdering Alfredo (N.J.S.A. 2C:11-3a), unlawfully possessing a knife (N.J.S.A. 2C:39-5d), unlawfully possessing a knife for the purpose of using it unlawfully against another (N.J.S.A. 2C:39-4d) and hindering prosecution by intimidation (N.J.S.A. 2C:29-3b(3)).

Maria appeals her convictions for hindering apprehension and tampering with a witness. We have consolidated these two appeals. Wilfredo has also appealed his convictions in a separate direct appeal however his brief has not yet been filed.

Defendants' joint trial proceeded before a jury. After the State rested its case the trial judge granted Maria's motion for acquittal on the conspiracy and murder counts and dismissed the conspiracy count against Wilfredo. The judge denied the

State's request for a stay of the trial pending appeal to this court, however, the attorneys managed to appear before a judge of the Appellate Division in Newark where the trial was being conducted. The Appellate Division judge in concurrence with one other judge of the Appellate Division summarily reversed the trial court's dismissal while preserving "defendant's right to move for a judgment of acquittal pursuant to R. 3:18-2 after the return of any guilty verdict." The record of the proceedings below indicates that a Supreme Court justice declined to grant leave to appeal from the order of reversal.

The trial was thereafter completed and the jury returned guilty verdicts against defendants on all counts of the indictment. The trial judge later granted the motions of both defendants for judgments of acquittal n.o.v. on the conspiracy convictions and he granted Maria the same relief on the murder count while denying alternative motions for new trials. The State sought unsuccessfully at both the trial and appellate levels to stay the judgments n.o.v., however, its motion for leave to appeal was granted. Defendants moved before this court to dismiss or to summarily dispose of the State's appeal; this relief was denied.

I

Defendants again seek dismissal of the State's appeal asserting that there is no authority for appellate review of a judgment of acquittal entered on grounds of insufficient evidence at the end of the State's case either under R. 2:3-1 or any statute or other authority. They also contend that such appellate review would constitute a violation of the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution as well as Article 1, paragraph 11 of the New Jersey Constitution. We agree on both grounds and are constrained to dismiss the State's appeal despite our disagreement with the trial judge's initial granting of judgments of acquittal at the

end of the State's case and his later granting of judgments ...


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