2:9-3. Stay
Pending Review in Criminal Actions
(a)
Death Penalty. Unless the Supreme Court
by leave granted otherwise orders, a sentence of death shall be stayed only as
follows:
(1) during the pendency of defendant's direct appeal to
the New Jersey Supreme Court and, on the affirmance of defendant's conviction
and sentence, during the period allowed for the timely filing of a petition for
a writ of certiorari to the United States Supreme Court and, if filed, while
that petition is pending disposition;
(2) during the pendency of a first petition for
post-conviction relief that is filed within thirty days after the United States
Supreme Court's disposition of defendant's application under paragraph (a)(1),
and, on the denial or dismissal of that petition for post-conviction relief,
during the pendency of defendant's appeal to the New Jersey Supreme Court and,
on the affirmance of defendant's conviction and sentence, during the period
allowed for the timely filing of a petition for a writ of certiorari to the
United States Supreme Court and, if filed, while that petition is pending
disposition; and
(3) during the pendency of a timely first petition for a
writ of habeas corpus in the United States District Court and, if the petition
is denied or dismissed, during the pendency of a timely appeal to the Third
Circuit and petition for a writ of certiorari to the United States Supreme
Court for review of the disposition of the habeas petition.
The State
shall notify defendant and defense counsel, the judge authorized to issue the
death warrant pursuant to N.J.S.A. 2C:49-5, and the New Jersey Supreme Court
forthwith on the expiration of any stay of the death sentence provided for
herein or on the expiration of a stay ordered pursuant to this Rule.
(b) Imprisonment. A sentence of imprisonment shall not be stayed by the
taking of an appeal or by the filing of a notice of petition for certification,
but the defendant may be admitted to bail as provided in R. 2:9-4.
(c)
Fine; Probation. A sentence to pay a fine
and an order placing the defendant on probation may be stayed by the trial
court on appropriate terms if an appeal is taken or a notice of petition for
certification is filed. If the court denies a stay, it shall state its reasons
briefly, and the application may be renewed before the appellate court. Pending
the appellate proceedings, the court may require the defendant to deposit, in
whole or part, the fine and costs with the official authorized by law to
receive the same in the county in which the conviction was had, or may require
a bond for the payment thereof, or may require the defendant to submit to an
examination of assets, and may make an appropriate order restraining the
defendant from dissipating any assets.
(d) Stay
Following Appeal by the State.
Notwithstanding paragraphs (b) and (c) of this rule, execution of sentence
shall be stayed pending appeal by the State pursuant to N.J.S.A.
2C:44-1f(2) or N.J.S.A. 2C:35-14c. Whether the sentence is custodial or
non-custodial, bail pursuant to R. 2:9-4 shall be established as
appropriate under the circumstances. A defendant may elect to execute a
sentence stayed by the State's appeal but such election shall constitute a
waiver of the right to challenge any sentence on the ground that execution has commenced.
(e) Stay
of Order of Enrollment in a Pretrial Intervention Program. An order of the trial court enrolling a defendant
into a pretrial intervention program over the objection of the prosecutor shall
be automatically stayed for fifteen days following the date of its entry, and
if the prosecutor files a notice of appeal within said fifteen-day period,
during the pendency of the appeal.
(f) Court to Which Motion Is Made. Pending appeal or certification to the Supreme Court
respecting a judgment of the Appellate Division, application for a stay pending
review shall be first made to the Appellate Division.
