Opinion
DOCKET NO. A-3580-13T1
09-24-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KEITH E. KOVATS, Defendant-Appellant.
Greggory M. Marootian, attorney for appellant. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes and Koblitz. On appeal from Superior Court of New Jersey, Law Division, Essex County, Municipal Appeal No. 2013-074. Greggory M. Marootian, attorney for appellant. Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). PER CURIAM
By letter dated September 14, 2015, we were advised by appellant's counsel that his client Keith E. Kovats died on September 12, 2015. In Newark v. Pulverman, 12 N.J. 105, 116 (1953), our Supreme Court held that the legal representative of one found guilty in a municipal court proceeding has status to prosecute an appeal before this court. Relying on Bower v. State, 135 N.J.L. 564, 568 (1947), the Court in Pulverman held that the death of the appellant does not render the case moot "insofar as the family of a deceased defendant is concerned and that his legal representative should have the opportunity to establish on appeal that the conviction was wrongful." Pulverman, supra, 12 N.J. at 116.
The Court revisited this issue in State v. Gartland, 149 N.J. 456 (1997); the Court noted that the United States Supreme Court has dismissed "a petition for certiorari when the petitioner died while the application was pending." Id. at 463 (citing Dove v. United States, 423 U.S. 325, 96 S. Ct. 579, 46 L. Ed. 2d 531 (1976)). Citing Pulverman and Rule 2:3-2, the Court in Gartland explained that "New Jersey has followed a middle course." 149 N.J. at 464. In contrast to the federal constitution, "the New Jersey Constitution does not confine the exercise of the judicial power to actual cases and controversies. Compare U.S. Const. art. 3, sec. 2, cl. 1 with N.J. Const. art. 6, sec. 1, par. 1." Ibid. Although the courts in our State will not render advisory opinions, we will review and decide cases that have "become moot when the issue is of significant public importance and is likely to recur." Ibid.
Ultimately, the Court in Gartland provided us with the following principles to guide our decisions when confronted with appeals from a quasi-criminal conviction where the appellant has passed away before the case has been decided:
The power to entertain a criminal appeal even after death should be sparingly exercised. A conviction should not be set aside unless the record shows palpably that there has been a fundamental miscarriage of justice, an error that cut mortally into the substantive rights of the defendant or impaired a defendant's ability to maintain a defense on the merits. Such caution is required because there is an intrinsic imbalance in the conduct of a criminal appeal on behalf of a deceased defendant. The contest is one-sided. The defendant can no longer be retried for the crime. The State and the victims of the crime cannot win. If the conviction is set aside, the State is realistically deprived of the opportunity to vindicate the public interest in enforcement of the law. On the other hand, important interests of the defendant or society at large may be at stake if an erroneous conviction is left standing.
[Id. at 465-66 (internal citations and quotation marks omitted).]
With these principles in mind, we discern no legal basis to decide this appeal. The arguments raised by defendant do not implicate issues of great public importance, and the record does not reveal a fundamental miscarriage of justice. We thus exercise the authority granted to us pursuant to Rule 2:8-3(b), and summarily dismiss this appeal as moot.
Appeal dismissed as moot. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Rule 2:3-2 provides:
In any criminal action, any defendant, the defendant's legal representative, or other person aggrieved by the final judgment of conviction entered by the Superior Court, including a judgment imposing a suspended sentence, or by an adverse judgment in a post-conviction proceeding attacking a conviction or sentence or by an interlocutory order or judgment of the trial court, may appeal or, where appropriate, seek leave to appeal, to the appropriate appellate court. (Emphasis added).