State v. Hand, ___ N.J. Super. ___ (App. Div. 2024). In State v. Jackson, 243 N.J. 52 (2020), the Supreme Court reversed the defendant’s conviction because his counsel was barred from cross-examining his co-defendant, a “key witness for the State,” regarding his sentencing exposure. The Court found a violation of the Confrontation Claus. That was because “if the jury had known the co-defendant was actually facing an extended term of ten years but negotiated a probationary term in exchange for his testimony, it might have believed this key witness for the State was biased.”

Defendant Hand had been convicted of conspiracy, money laundering, and theft by deception. After the Appellate Division reversed the money laundering conviction, defendant was sentenced on the other charges on May 26, 2020. That closed the case.

The Supreme Court decided Jackson about five weeks later, on July 2, 2020. Hand filed a motion for post-conviction relief, contending that Jackson should be applied with maximum retroactivity, including as to closed cases such as her own. The Law Division denied that motion and the Appellate Division affirmed in an opinion by Judge DeAlmeida.

That opinion carefully proceeded through a series of steps that are required in determining whether and to what extent a new court ruling is retroactive. The first step was whether Jackson “announced a new rule of law.” The parties agreed that it did, and Judge DeAlmeida saw no reason to disagree.

As to the effect of a new rule, “[t]here are four options: (1) prospective application, (2) application ‘in future cases and in the case in which the rule is announced,’ (3) ‘”pipeline retroactivity,” rendering it applicable in all future cases, the case in which the rule was announced, and any cases still on direct appeal,’ or (4) ‘complete retroactive effect.'” Hand needed to demonstrate that “complete retroactive effect” was appropriate in order to benefit from Jackson.

There was a three-pronged test: “(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice.” Judge DeAlmeida recited, citing prior cases, three potential purposes that fell under (1).

One of them– deterring police misconduct– was plainly inapplicable. A second purpose– “overcom[ing] an aspect of the criminal trial that substantially impairs its truth-finding function and which raises serious questions about the accuracy of guilty verdicts in past trials,” which if proven could call for complete retroactivity– did not avail. “[T]he rule replaced by Jackson did not substantially impair the truth-finding process at trial,” as Judge DeAlmedia went on to explain. The third category, which fell “between these extremes,” was “where the new rule is designed to enhance the reliability of the factfinding process but the old rule did not ‘substantially’ impair the accuracy of that process.” Given the finding that there was no substantial impairment, the third category did not aid defendant.

The panel “reach[ed] the same conclusion with respect to the State’s reliance on the old rule, which was longstanding, and the impact on the administration of justice that would result from complete retroactivity. As the PCR court recognized, co-defendant cooperation has long been a facet of multi-defendant trials. It is likely that complete retroactive application would potentially disrupt numerous convictions.”

Defendant argued that “the holding in Jackson is similar to the holdings in State v. Afanador, 151 N.J. 41, 59 (1997), and Roberts v. Russell, 392 U.S. 293, 293 (1968), where complete retroactivity was applied.” Judge DeAlmeida did not agree, as his discussion of those cases demonstrated. Instead, the panel found the reasoning ofState v. Bellamy, 178 N.J. 127 (2003), which denied complete retroactivity under “similar circumstances,” to be equally applicable here.