Writing for the Appellate panel, Judge Fisher continued: We start by considering whether the new judgment of conviction is a final order. As noted, we previously reversed defendant’s convictions on three theft counts – counts one, six, and eight – and remanded for a new trial; we left alone the remaining convictions. The new judgment of conviction, however, contains no disposition of the three remanded counts; the judgment merely contains the observation that the “prior adjudications on these counts were vacated by the Appellate Division.” Leaving those three counts unadjudicated was no accident; the judge observed at the resentencing hearing:
Now, we are moving forward to a resentencing. And . . . this is without re-adjudicating counts one, six and eight. I think that is sensible, as the Appellate Division observed in another part of their opinion, there certainly seems as if there would be overlap in the merger in connection with those counts. Now, in terms of what happens to counts one, six and eight, I think it may be at this point the doctrine of mandatory joinder or perhaps a form of double jeopardy or . . . lesser included of what might make it sensible not to proceed on those counts. Again, I’ve said and the Appellate Division had said that there’s an overlap. So, I do think it is sensible to proceed in this fashion and I suspect those counts, there would be no good reason ever to adjudicate them.
These comments demonstrate the judge was conscious of the fact that the reason for our remand – the need for a final disposition of those three counts – had not occurred. Despite our unambiguous mandate, the judge deemed it appropriate to allow the State to keep those three unadjudicated charges in its hip pocket pending the outcome of defendant’s inevitable appeal of the new judgment of conviction. By proceeding in this manner, the judge entered a new judgment of conviction that is not a final order.
The Appellate Division makes it clear that there is no reasonable basis to believe that the trial court’s disregard for their Order was an accident. That was probably an argument made by the prosecution in responding to the pro se appeal.
