1 SUPREME COURT OF NEW JERSEY M-1224 September Term 2020 083398 State of New J ersey, Plaintiff-Respondent,

v.
Michelle Lodzinski, Defendant-Movant. O R D E R

Pending before the Court is defendant ’s motion for reconsideration of the Court’s opinion, filed on May 26, 2021. The background to the motion is as follows.
I. On July 31, 2014, a Middlesex County grand jury indicted defendant on a single count of first-degree murder of her five-year-old son, Timothy Wiltsey, more than twenty-t hree years after his disappear ance. At the close of the State’s case, defendant filed a motion for a judgment of acquittal pursuant to Rule 3:18-1. That motion was deni ed, and the jury proceeded to convict defendant of first-degree murder. The trial court denied defendant’s motion FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833982 for a judgment of acquittal notwithstandi ng the verdict pursuant to Rule 3:18-2 and sentenced her to thirty years’ imprisonment without parole eligibility. Defendant appealed her c onviction to the Appellate Division, arguing, in relevant part, that the trial court ha d erred in denying her motion for acquittal notwithstanding the verdict. The Appe llate Division affirmed her conviction, explaining that it had assessed the su fficiency of the evidence by looking only to the State’s proofs. While the Appellate Division observed that the defendant had offered “subs tantial” evidence at trial that “in many ways directly rebutted the State’s proofs,” this evidence went unreviewed and unconsidered. Defendant sought this Court’s review and we granted certification. 241 N.J. 81 (2020). All six members of the Court agreed that the Appellate Division applied an incorrect standard that limited “the scope of the evidence that should be considered in reviewing a post-verdic t motion for a judgment of acquittal.” State v. Lodzinski, 246 N.J. 331, 339 (2021); accord id. at 359-60 (Patterson, J., concurring). The concurring opinion stated the unanimous view of the Court that “[w]hen a defendant moves fo r a judgment of acquittal after all the proofs, . . . the court considers not onl y the evidence presented by the State, but ‘the entirety of the evidence.’” Id. at 358 (quoting State v. Williams, 218 N.J. 576, 594 (2014)). We also charact erized our statement in State v. FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833983 Samuels that “a court ‘may not consid er any evidence adduced by the defense in determining if the State had met its burden,’” 189 N.J. 236, 245 (2007) (quoting Pressler, Current N.J. Court Rule s, cmt. 1 on R. 3: 18 (2006)), as “a departure from our law,” Lodzinski, 2 46 N.J. at 358 n.6 (Patterson, J., concurring). The concurring and disse nting opinions then applied this corrected standard, reaching opposite conc lusions as to the sufficiency of the evidence. Both opinions earned the support of three Justices. Notwithstanding this conclusion, the per curiam opinion of the Court stated that the “judgment of the Appellate Division is affirmed by an equally divided Court.” Id. at 339.
II. Following this Court’s decision, defendant filed a motion for reconsideration pursuant to Rule 2:11-6( a). Defendant argues that this Court erred in determining that the Appellate Division’s d ecision could be affirmed by an equally divided Court given our unanimous determination that the Appellate Division had app lied the incorrect standard. Defendant further argues that she has never received judici al review of her insufficient-evidence claim under the correct standard, as this Court could not take an affirmative act without a majority vote for that action. Defendant contends that this is an FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833984 error in the handling of her appeal that works a violation of her due process rights. 1 Motions for reconsideration in our ap pellate courts are governed by Rule 2:11-6. Under Rule 2:11-6(b), “[a] mo tion for reconsideration will be granted only if it is moved by a justice or j udge who concurred in the judgment or decision, and a majority of the cour t so determines.” Therefore, two requirements must be met for this Court to grant a motion for reconsideration: the support of a single justice who joined the judgment or decision on which

1 Defendant also requested that the se nior judge of the Appellate Division be assigned for temporary service on the C ourt to hear defendant’s motion for reconsideration, in order to avoid a second equally divided decision. That authority is reposed in the Chief Justice, or the Presiding Justice, pursuant to authority found in the Constitution and in th e Court Rules. N.J. Const. art. VI, § 2, ¶ 1; R. 2:13-2(a); see generally He nry v. Dep’t of Hum. Servs., 204 N.J. 320, 345-46 (2010) (Rabner, C.J., concurring) (addressing the breadth and exercise of this authority and stating that the power’s use may be necessary when there is no underlying decision on which an evenly divided Court’s ruling constitutes the first instance of j udicial review). This power has been exercised in motions for reconsideration before. See, e.g., Motor Club Fire & Cas. Co. v. N.J. Mfrs. Ins. Co., 73 N. J. 425, 428 (1977) (providing an example of the use of the assignment power to call up senior member of the Appellate Division in order to resolve, on reconsid eration, an important issue on which the Court had split three-three). The Presiding Justice has assigned th e senior most member of the Appellate Division, the Honor able Jose L. Fuentes, P. J.A.D., to serve in the Court’s consideration of this motion fo r reconsideration and in any further proceedings in this matter. FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833985 reconsideration is sought, and, separately, the support of a majority of the Court. In this instance, because bot h requirements are met, the motion for reconsideration will be granted and the matter reargued for the following

reasons. III. Any member of this Court who joined the per curiam portion of our earlier decision in this matter may serve as the justice “who concurred in the judgment or decision” on which reconsid eration is sought, for purposes of Rule 2:11-6(b). This Court “unanimous ly modif[ied] the Appellate Division’s holding with respect to its characterizat ion of the scope of the evidence that should be considered in reviewing a post-verdict motion for a judgment of acquittal” and unanimously agreed that th e effect of that determination was an affirmance of the Appellate Division’s decision. Lodzinski, 246 N.J. at 339; see also id. at 385 (Albin, J., dissenting) (“[T]he murd er conviction in this case will stand . . . .”). Because it is that aspect of our decision, and only that aspect, on which defendant requests recons ideration, any of the six Justices joining that per curiam decision may be the requisite justice who “move[s]” a motion to reconsider that portion of th e decision. And because at least one Justice who joined our per curiam decision in this matter has voted in favor of FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833986 granting reconsideration, that requireme nt of Rule 2:11-6(b) does not erect a barrier to our review. Moreover, on the merits, defendant ri ghtfully asserts that adjudicating her guilt or innocence by using a conceded ly erroneous ruling as a tiebreaker denies meaningful judicial review. Though there are coun tless instances of this Court resolving appeal s with an equally divided affirmance, there are no such examples of the Court doing so where the decision to be affirmed is unanimously judged to apply incorrect legal standards. Our Court’s split on the application of the correct standard of review to defendant ’s sufficiency-ofthe-evidence argument did not resolve the appeal from the trial court’s denial of her Rule 3:18-2 motion. The split re quires correction by the appellate body. Cf. R. 2:13-2(b); see Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 2:13-2 (2021). Under Rule 2:13-2(b), wh en a two-judge panel “cannot agree as to the determination” of the issue on appeal, the panel “shall” “call a third judge to participate in the decision.” Th e rationale for Rule 2:13-2(b) is quite simple: a third judge is required to participate because “the rule does not intend an affirmance of the order or judgment appealed from by reason of an equally split appellate panel. ” Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 2:13-2 (2021). FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833987 Criminal defendants in New Jersey have a constitutionally protected “automatic right of appeal” of a final ju dgment of appeal. N.J. Const. art VI, § 5, ¶ 2; see also R. 2:2-3(a); R. 2:3- 2. Where “a State has created appellate courts as ‘an integral part of the . . . system for finally adjudicating the guilt or innocence of a defendant,’ the proce dures used in deciding appeals must comport with the demands of the Due Process and Equal Protection Clauses of the Constitution.” Evitts v. Lucey, 469 U.S. 387, 393 (1985) (omission in original) (quoting Griffin v. Illinois, 35 1 U.S. 12, 18 (1956)); accord State v. K.P.S., 221 N.J. 266, 279-80 (2015). “I n order to satisfy the Due Process Clause, defendants must be given a ‘mea ningful opportunity to be heard.’” State v. Bianco, 103 N.J. 383, 391 (1986 ) (quoting Boddie v. Connecticut, 401 U.S. 371, 377 (1971)). Defendant has brought to this Cour t’s attention a failing in its prior handling of this matter, which requires co rrection. She rightfully claims that the unique procedural posture of this Court’s decision left her appeal unconsidered under the proper legal standa rd, which, left uncorrected, works a violation of her due process rights. Defendant does not challenge an evidentiary ruling, the construction of a st atute, or the meaning of an insurance policy provision. She challenges the very process by which this evenly divided Court addressed he r conviction for first-degr ee murder. On e searches FILED, Clerk of the Supreme Court, 06 Oct 2021, 083398FILED,Clerk of the Supreme Court, 06 Oct 2021,083398JUSTICE ALBIN concurs in the Order. Rule 2:11-6 allowed this Court to grant the motion for reconsideration when it became evident th at the Court, through oversight or inadvertence, made a fundamental mistake in rendering its decision. Though rarely invoked, the Rule permits the Court to correct its own errors. Admitting a procedural error of constitutional magnitude, as the Court does today, keeps faith with the purpose of that Rule. As the Order states, the per curiam por tion of the opinion -- joined by all six members of the Court participating in this appeal -- held that the Appellate Division applied the wrong standard “in reviewing [Lodzinski’s] post-verdict motion for a judgment of acquittal” under Ru le 3:18-2. Ante at ___ (slip op. at 5) (quoting State v. Lodzinski, 246 N.J. 331, 339 (2021)). The Appellate Division’s review of Lodzinski’s motion for a judgment of acquittal notwithstanding the verdict surveyed only the evidence presented by the State. The Appellate Division failed to consider the entirety of the evidence -- the evidence presented by both the State and defense -- as required by state law, State v. Williams, 218 N.J. 576, 594 (2 014), and federal law, Jackson v. Virginia, 443 U.S. 307, 316- 19 (1979) (stating that due process demands that “all of the evidence” be considered in deciding such an issue (emphasis omitted)). FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833982 All six members joining the per curiam opinion agreed that the Appellate Division’s review of the sufficiency of the evidence was substantively and constitutionally flawed. See Lodz inski, 246 N.J. at 339, 357-60. In applying the correct standard -- reviewing the entirety of the evidence in the light most favorable to the Stat e -- the Court split three-three on whether the proofs satisfied the beyond-a-reasona ble-doubt requirement to support Lodzinski’s murder conviction. With th e benefit of hindsight, it is now clear that the Court had only two viable options when it reached a stalemate: either remand to the Appellate Division to review the evidence under the proper standard set forth in the per curiam opinion or order re-argument and call up the senior member of the Appellate Divi sion to sit as the seventh member of the Court to break the deadlock. Proce eding as we did was a mistake. As indicated by the Order, a thr ee-three split on the Supreme Court cannot uphold an Appellate Division decision that all six Justices agree is constitutionally infirm. Only three memb ers of this Court -- and no member of the appellate panel -- a ffirmed Lodzinski’s conviction applying the proper sufficiency-of-the-evidence standard. Had the three-judge appellate panel applied the appropriate standard, no one would question that a split decision by this Court would require an affirmance of the conviction -- and a denial of the motion for reconsideration. Bu t that is not the case here. FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833983 My dissenting colleagues’ reliance on Abbamont v. Piscataway Twp. Bd. of Educ., 163 N.J. 14, 14 (1999), a nd State v. Manzie, 168 N.J. 113, 114- 23 (2001), for the proposition that a split decision of this Court results in the affirmance of the Appellate Division ju dgment is inapposite. Unlike here, the members of the Abbamont and Manzie Courts did not unanimously agree that, based on the governing case law, the de cisions rendered by the appellate panels were substantively and constitu tionally flawed. In those cases, the Justices merely disagreed on the interpre tation of the statutes at issue -- with three members of a six-member Court c oncurring with the appellate panels’ statutory interpretation, leading to affi rmances. See Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 413, 435 (1994); Manz ie, 168 N.J. at 120-23. There, the decisions of the Appellate Division were the tie breakers. An Appellate Division decision that a ll agree violates our case law and constitutional norms cannot be a tie breaker. A constitutionally defective decision, moreover, cannot serve as binding authority under the discretionary law-of-the -case doctrine. S ee State v. K.P.S., 221 N.J. 266, 280 (2015) (“[T]he appellate panel in this case denied defendant [appellate review] based on th e panel’s mistaken application of the law-of-thecase doctrine.”); accord In re Estate of Chavana, 993 S.W.2d 311, 315 (Tex. FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833984 App. 1999) (“[T]he court is being asked to apply the law of the case to reach an unconstitutional result. This we cannot do.” (footnote omitted)). Our State Constitution affords to all defendants convicted of a crime an “automatic right of appeal” -- an appeal that comports with principles of due process enshrined in both our Federal a nd State Constitutions. See K.P.S., 221 N.J. at 279-80 (citing N.J. Const. art. VI, § 5, ¶ 2); see also R. 2:2-3(a)(1); R. 2:3-2. Due process guarantees “certa in minimum safeguards necessary to make that appeal ‘adequate and effective’” -- including “a fair opportunity to obtain an adjudication on the merits of [her] appeal.” Evitts v. Lucey, 469 U.S. 387, 392, 405 (1985) (quo ting Griffin v. Illinois, 351 U.S. 12, 20 (1956) (plurality opinion)). Inherent in the “right of appeal” is the right to a resolution of the ap peal. See ibid. This Court’s three-three split did not resolve Lodzinski’s appeal challenging the sufficiency of all the evidence based on a substantively and constitutionally correct standard of review. The appe llate panel upheld Lodzinski’s conviction by applying the wr ong standard of review. That error was a fundamental defect in the appellate process that undermined the integrity of the Appellate Division’s judgment. That Lodzinski’s attorney cited th e wrong standard of review in her appellate brief does not rende r harmless or excuse the appellate panel’s failure FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833985 to apply the correct standard. See R. 2:10-2 (“[T]he appellate court may, in the interests of justice, notice plain e rror not brought to the attention of the trial or appellate court.”) . An appellate court has a non-delegable obligation to maintain “minimum safeguards necessary to make [an] appeal ‘adequate and effective’” as required by due process. See Evitts, 469 U.S. at 405 (quoting Griffin, 351 U.S. at 20). My dissenting colleagues argue that this is a case of invited error. An appellate court, how ever, cannot accept an invitation to deny a defendant due process. In sum, the “right of appeal” conf ers on a convicted defendant the right to a resolution of the appeal. Id. at 39 2, 405. This Court has the authority to review a Rule 3:18-2 su fficiency-of-the-eviden ce motion de novo, but an equally divided Court cannot resolve the question when the a ppellate court has applied the wrong standard. Rule 2:11-6(b) provides that “[a] motion for reconsideration will be granted only if it is moved by a justice or judge who concurred in the judgment or decision, and a majority of the cour t so determines.” All six Justices “concurred” in the “decision,” which held that the Appellate Division applied a substantively and constitutionally incorrect standard. Concurring in that per curiam decision should have led each Justice to realize that the Appellate Division’s sufficiency-of-the-evidence holding could not be affirmed on a split FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833986 vote. Any Justice concurring in the pe r curiam decision had the right to move for reconsideration of the err oneous judgment of this Court. By promulgating Rule 2:11-6(b), the Court has acknowledged that it is not infallible and has provided a mechanis m to correct its own mistakes. By granting this motion for reconsideration, the Court provides Lodzinski and the State the opportunity for a final resolu tion of the sufficiency-of-the-evidence argument based on the correct standard of review. That final resolution, whatever it may be, must await re-ar gument before a seve n-member Court. FILED, Clerk of the Supreme Court, 06 Oct 2021, 083398JUSTICE PATTERSON, JUSTICE FERNANDEZ-VINA, and JUSTICE SOLOMON dissent from the Order.
In this appeal, a six-member Cour t equally divided on the merits of defendant’s Michelle Lodzinski’s motion for a judgment of acquittal notwithstanding the jury’s verdict of gui lty in the first-degree murder of her five-year-old son, Timothy Wiltsey. State v. Lodzinski, 246 N.J. 331, 339 (2021). Pursuant to this Court’s prac tice and precedent, the three-to-three vote affirmed the Appellate Division’s deci sion upholding defendant’s conviction. Ibid. In the Order entered today, defendant is granted reconsideration and the opportunity to seek a judgment of acquitta l before a reconstituted Court. She is not afforded this extraordinary relie f because of any defect in her trial; indeed, she prevailed in every evidentiary dispute before the trial court. No new legal principle has emerged from de fendant’s appeal that might warrant rehearing. Not a single justice has ch anged his or her mind about the trial evidence or the governing law. Instead , defendant secures rehearing and the prospect of acquittal on an astonishing ground: that because the Appellate Division applied an incorrect standard of review that defendant herself urged it to apply -- an error that this Court ha s since corrected -- she has been denied due process. FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833982 For the reasons explained below, de fendant’s constitutional rights were fully protected in her appeal, just as they were at her trial. This Court reviewed the trial court’s decision de nying defendant’s motion for a judgment of acquittal under the correct standard, not the mistaken standard that she argued to the Appellate Division. Id. at 357-59, 376-79. Under our jurisprudence, a concurring opinion by three members of an equally divided Court is not precedential in other cases , but it provides the governing law in the appeal itself. Abbamont v. Piscat away Twp. Bd. of E duc., 314 N.J. Super. 293, 300-01 (App. Div. 1998 ), aff’d, 163 N.J. 14 (1999). In our concurring opinion, indisputably applying the proper test, we thus afforded defendant the due process to which she was entitled on appeal. We theref ore voted to deny defendant’s motion fo r reconsideration. As our colleagues acknowledge, this Court’s rule governing motions for reconsideration, Rule 2:11-6(b), require s more than a majority vote to grant rehearing of a decided appeal. The ru le does not authorize reconsideration unless “a justice or judge who concurred in the judgment or decision” votes for reconsideration. R. 2:11-6(b); see also ante at ___ (slip op. at 4-5) (order granting motion for reconsideration). Be cause we -- the three members of the Court who concurred in the decision a ffirming defendant’s conviction -- voted FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833983 to deny reconsideration, no such “j ustice or judge” supports defendant’s motion in this appeal. Confronted with that requirement, our colleagues now claim to have “concurred” in the decision affirming defendant’s convicti on, notwithstanding the fact that their dissent characterized that decision as a mi scarriage of justice unrivalled in the history of our State. See Lodzinski, 246 N.J. at 385, 400, 402 (Albin, J., dissenting). That claim, asserted only to secure a judgment of acquittal for defendant in the murder of her son, does not withstand the slightest scrutiny. Our colleagues did not “concur” in the decision, but emphatically dissented. Id. at 384-402. We view the Order entered today to be unauthorized by Rule 2:11-6(b), a cour t rule that this Court itself adopted, and to which it has alwa ys adhered. Accordingly, we respectfully dissent.
I.
A.
1. In a twenty-eight-day trial, the St ate and defendant presented extensive evidence to a jury. 1

1 The State’s and defendant’s trial ev idence is reviewed in detail in our concurring opinion, Lodzinski, 246 N.J. at 362-76 (Patterson, J., concurring), FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833984 Among other evidence, the State presented testimony indicating that defendant told police that her son was abducted at a carnival in Sayreville on May 25, 1991; that she gave police mo re than a half-dozen contradictory accounts of the claimed abduction; that the child’s skull, leg bones, and sneakers were found in or near a creek four-tenths of a mile from defendant’s former workplace; that defendant did not disclose that workplace to police when she named her prior employers until she was directly confronted about it; that defendant’s son’s former babysitte rs recognized a blanket found near the child’s remains as one that they had s een at defendant’s home; and that an expert witness in forensic pathology concluded that the child died as the result of a homicide, not by virtue of a dise ase, suicide, or an accident. See Lodzinski, 246 N.J. at 362-76 (Patterson , J., concurring). And defendant presented, among other evidence, the testimony of witnesses who had told police that they saw a boy who looked similar to defendant’s son at the Sayreville carnival; the testimony of an Arizona man who c ontended that his former codefendant in a robbery case in that state had traveled to New Jersey and killed defendant’s son -- a contenti on refuted by the former codefendant

and the State’s trial evidence is reviewed in detail in the dissenting opinion, id. at 386-97 (Albin, J., dissenting). FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833985 who testified at trial; and expert te stimony calling into question the State’s proofs. See id. at 371-76. Charged by the trial court on the State’s burden to prove beyond a reasonable doubt the elements of first-de gree murder, N.J.S.A. 2C:11-3(a)(1), as well as the elements of the lesse r-included offenses of first-degree aggravated manslaughter, N.J.S.A. 2C :11-4(a)(1), and second-degree reckless manslaughter, N.J.S.A. 2C:11-4(b)(1), th e jury returned a verdict of guilty beyond a reasonable doubt on the first-degree murder charge, Lodzinski 246 N.J. at 351 (Patterson, J., concurring).
2. Defendant filed a post-trial motion pursuant to Rule 3:18-2 for a judgment of acquittal notwithstanding the verdict on the ground that the evidence presented was insufficient to support the jury’s verdict of guilt beyond a reasonable doubt. A defendant must meet a stringent burden in order to be awarded a judgment of acquittal notwithstanding a jury verdict. In State v. Reyes, this Court held that when a trial or appe llate court decides such a motion, it determines whether, viewing the State’s evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all fa vorable testimony as well as all of the favorable infere nces which reasonably could FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833986 be drawn therefrom, a reasona ble jury could find guilt of the charge beyond a reasonable doubt. [50 N.J. 454, 458-59 (1967).] If any reasonable jury could find guilt beyond a reasonable doubt, the motion must be denied. Ibid. Reyes arose from a motion for a judgmen t of acquittal at the close of the State’s case, and the Court did not a ddress in that case the scope of the evidence that must be consid ered when such a motion is filed after a verdict. Ibid. With two of our current colleagues participating, this Court held in 2007 that a court deciding a motion for a judgme nt of acquittal after all the evidence is presented must confine its review of the adequacy of th e evidence to the State’s case and the inferences to be derived from that evidence, and “may not consider any evidence adduced by the defe nse in determining if the State had met its burden as to all elements of th e crime charged.” State v. Samuels, 189 N.J. 236, 245 (2007) (quoting Pressler, Curre nt N.J. Court Rules, cmt. 1 on R. 3:18 (2006)); see also id. at 255 (Albin, J., dissenting) (likewise identifying the governing standard as whether “the St ate presented suffi cient evidence from which a jury could conclude beyond a reasonable doubt that defendant committed” the crimes charged, but disa greeing with the majo rity as to the application of that standard in the Samuels appeal). FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833987 Seven years ago, however, the Court held that when a defendant moves for a judgment of acquittal after the verd ict, the court considers not only the State’s evidence, but “the entirety of the evidence,” with that evidence viewed favorably to the State as Reyes require s. State v. Williams, 218 N.J. 576, 594 (2014). Consistent with Williams, the trial judge in this case weighed all of the evidence when he denied defendant’s motion for a judgment of acquittal notwithstanding the verdict. In his opi nion, the trial judge wrote that when a court considers a motion for a judgment of acquittal based on the sufficiency of the evidence, it “must decide whether the evidence is sufficient to warrant a conviction beyond a reasonable doubt,” and “must sift the evidence to determine whether a jury could have rationally found that the essential elements of the crime were proven be yond a reasonable doubt.” As defendant confirmed to this Court, the trial court did not confine its review to the State’s evidence alone, but properly considered a ll of the evidence when it decided her motion for a judgment of acquittal under Rule 2:11-6(b). Indeed, in her supplemental reply brief to this Court, opposing the State’s claim that she had waived her argument about the sufficien cy-of-the-evidence standard by not asserting that argument below, defendant stated that she had no reason to raise the issue because “nothing in the trial c ourt’s recitation of the applicable law FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833988 nor its abbreviated discussion of the ev idence suggested that it did not, or could not, consider defense evidence in denying Michelle’s post-conviction acquittal motion.” Applying that standard, the tria l court found that the evidence was sufficient to support a reasonable jury ’s verdict of guilty beyond a reasonable doubt.
B. Defendant appealed her c onviction, contending that the trial court erred when it denied her motion for a judgment of acquittal. 2 In her brief to the Appellate Division, defendant asserted the same err oneous formulation of the standard governing her motion that sh e now claims deprived her of due
process. Quoting Reyes, 50 N.J. at 459, de fendant argued that the Appellate Division should decide “whether, viewing the State’ s evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all of its favorable testimony as well as al l of the favorable inferences which

2 Defendant challenged her conviction on a second ground as well: the denial of her motion for a new trial based on the trial court’s dismissal of a juror who violated its instructions and conducted independent research, and the court’s substitution of an alternate for that juro r. Lodzinski, 246 N.J. at 353-54. In her motion for reconsideration, defenda nt does not raise the juror-substitution issue, but relies exclusively on her challe nge to the sufficiency of the evidence. FILED, Clerk of the Supreme Court, 06 Oct 2021, 0833989 reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.” Defendant thus urged the Appellate Division to limit its consideration to th e evidence presented by the State when it reviewed the trial court’s decisi on denying her motion for a judgment of acquittal. In its responding brief, the State followed suit, contending that the Appellate Division should base its decision on the evidence that it had presented to the jury. The Appellate Division affirmed defendant’s conviction in an unpublished opinion. Adopting the standa rd that defendant had urged it to apply, the appellate court commented that “[i]t is generally stated that whether the motion to acquit is made at the end of the State’s case or after the end of the entire case the standard is the same , i.e., only the State’s proofs will be considered.” (quoting State v. Sugar, 240 N.J. Super. 148, 152-53 (App. Div. 1990)). Reviewing the State’s evidence, the Appellate Division held that the evidence was sufficient to support a reas onable jury’s verdict of guilty beyond a reasonable doubt, and affirmed defendant’s conviction.
C. With the Chief Justice recused, a si x-member Court granted defendant’s petition for certification. 241 N.J. 81 (2020). No Appellate Division judge FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339810 was assigned to temporarily serve on th e Court and hear defendant’s appeal. 3 In her petition for certification, defendant premised a federal constitutional argument on the very te st for a post-verdict motion for a judgment of acquittal that she had urge d the Appellate Division to apply. Without citing Williams, defendant stated that Samuels was wrongly decided, and argued that if the standard applie d by the Appellate Division represented New Jersey law, that standard violated federal due process principles set forth in Jackson v. Virginia, 443 U.S. 307, 317 (1979). Thus, having misstated the standard governing her motion to the Appellate Division, defendant argued before us that the appellate court’s app lication of that standard -- exactly as she presented it -- violated her fe deral constitutional rights. The Court’s per curiam opinion rec ited that “the six members of the Court who participated in this app eal unanimously modify the Appellate

3 The Chief Justice may in his discreti on assign an Appellate Division judge to temporarily serve on this Court in se veral settings; one such setting is an appeal in which a justice’s absence le aves the Court with a quorum but not a full complement of seven justices. Se e Henry v. Dep’t. of Hum. Servs., 204 N.J. 320, 340-54 (2010) (Ra bner, C.J., concurring) (discussing the Chief Justice’s authority under Article VI, Sec tion 2, Paragraph 1 to assign Appellate Division judges to temporarily serve on th e Court); see also R. 2:13-2(a). As the Order granting reconsideration not es, when the Chief Justice does not participate in a particular appeal and onl y six justices participate, the Presiding Justice may exercise the same discreti onary authority. Ante at ___ n.1 (slip op. at 4 n.1)(order granting motion for r econsideration); see also R. 2:13-2(a). FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339811 Division’s holding with respect to its characterization of the scope of the evidence that should be considered in reviewing a post-verdict motion for a judgment of acquittal.” Lodzinski, 246 N.J. at 339. In the concurring opinion, we reiterated the Williams standard, not ing that when a motion for a judgment of acquittal notwithstanding the verdict is filed after the verdict, the court must consider all of the evidence, including the evidence presented by the defense. Id. at 358-59 (Patterson, J., concurri ng). All members of the Court participating in the appeal held that th e New Jersey standard for such motions comports with federal due process prin ciples. Id. at 358-60; id. at 385 n.1 (Albin, J., dissenting). The Court sharply divided, however, as to the outcome of defendant’s appeal. In our concurring opinion, we reviewed the defense evidence as well as the State’s evidence, and conclude d that the entirety of the evidence supported a reasonable jury’s verdict of guilty beyond a reasonable doubt. Id. at 357-79 (Patterson, J., concurring). With no reference to any proofs pres ented by the defense, the dissenting justices contended that the evidence was insufficient to support a reasonable jury’s decision to convict defendant. Id. at 384-400 (Albin, J., dissenting). They concluded their dissent by st ating that under federal due process principles, “Lodzinski’s murder convicti on cannot stand. But it will, at least FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339812 for now, because the three dissenting votes in this appeal are insufficient to prevent this miscarriage of justice.” Id. at 402 (citation omitted).
D. Defendant swiftly responded to the di ssent’s prompt. In her motion for reconsideration, she stated that sh e was entitled to a rehearing with an Appellate Division judge added to the Court for her appeal. Defendant claimed that although her case had been reviewed by the trial court, the Appellate Division and this Court, no court had ruled on her insufficientevidence claim under the correct test. Sh e further asserted that because this Court equally divided on her sufficiency -of-the-evidence claim, it issued no precedential ruling and subjected her to a constitutionally-flawed ruling by the Appellate Division, thus violating her federal due pr ocess rights under Mathews v. Eldridge, 424 U. S. 319, 332 (1976). The Presiding Justice then assigned th e senior Appellate Division judge to temporarily serve on the Court. Th e Court granted reconsideration by a vote of four to three. Defendant thus achieved a remedy that appears to be unprecedented: the addition of an Appellate Division judge, at the behest of an unsatisfied litigant, for a new heari ng before a recomposed Court. FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339813 II. For the reasons explained below, we conclude that defendant’s due process argument is without merit. Defendant’s first contention -- that her sufficiency-of-the-evidence claim has yet to be reviewed under the correct standard -- is simply untrue. As noted, the trial court properly considered all of the evidence when it denied defendant’s post-verdict motion for a ju dgment of acquittal under Rule 3:18-2. In our concurring opinion, we considered the defense evidence as well as the State’s evidence under the standard set forth in Williams, 218 N.J. at 594, a standard that defendant concedes is co nstitutional. Lodzin ski, 246 N.J. at 357- 79. Only the Appellate Division, in an error invited by defendant herself, incorrectly stated the test. Defendant’s second contention -- that the Court’s per curiam opinion left in place a “flawed” Appellate Division’s decision as controlling law -- ignores this Court’s jurisprudence regarding the import of three-three ties. Defendant is correct that our concu rring opinion in State v. Lodzinski is not a precedential opinion; when this Court equally divides and thus affirms the Appellate Division’s decision, its c oncurring opinion cannot be cited to courts as precedent in cases that follow. Mount Holly Twp. Bd. of Educ. v. Mount Holly Twp. Educ. Ass’n, 199 N.J. 319, 332 n.2 (2009). Defendant’s FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339814 motion for reconsideration, however, c oncerns the Lodzinski case itself, not some future case. And in the Lodzinski case, it is not the Appellate Division opinion but this Court’s concurring opi nion that provided the governing law on the sufficiency of the evid ence under Rule 3:18-2. That distinction was explained in th e Appellate Division’s decision in Abbamont, 314 N.J. Super. at 301, a decision affirmed by this Court in Abbamont v. Piscataway Township Bo ard of Education, 163 N.J. 14 (1999)

. In Abbamont, the plaintiff asserted cl aims against his former employer, a board of education, under the Conscien tious Employee Protection Act (CEPA),
N.J.S.A. 34:19-1 to -14. Abbamont v. Piscataway Twp. Bd. of Educ., 138 N.J. 405, 410 (1994). The Court equally divi ded on the question whether a plaintiff may seek punitive damages in a CEPA case against a public entity or public employee; three justices joined a conc urring opinion allowing CEPA plaintiffs to pursue punitive damages in public-employment cases, id. at 425-33 (Handler, J., concurring), and three jus tices joined an opinion dissenting on that question, id. at 435-36 (Pollock, J., concurring in part and dissenting in part). The Court affirmed the Appe llate Division’s judgment remanding the case for trial. Id. at 413, 435. Four years later, the Abbamont case returned to the Appellate Division. Abbamont, 314 N.J. Super. at 296-300. As the Appella te Division recounted, FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339815 the trial court on remand had dism issed the punitive damages claim notwithstanding the concurring opinion’ s mandate that the court send that claim to the jury, and the plain tiff appealed. Id. at 298-99. In an opinion by Judge Skillman, the A ppellate Division identified as its first task the determination whether its own prior opinion or the concurring opinion by three members of this Court provided the governing law for purposes of the Abbamont case . As the court explained, The threshold issue presented by this appeal is whether the controlling law following the remand is this court’s majority opinion or Justice Handler’s prevailing opinion in the evenly divided Supreme Court. This point is significant because although we may disagree with a decision of another panel of this court under some circumstances, we are obviously bound by a decision of the Supreme Court. [Id. at 300 (citation and footnote omitted).] The Appellate Division acknowledged “that an affirmance by an equally divided court is not entitled to any preceden tial weight.” Id. at 301. It stated, however, that the question was not whether the concurring opinion was precedential, but whether that opini on provided the governing law in the Abbamont case itself. As the court observed, [T]he issue before us is not whether the Supreme Court’s decision should be accorded precedential weight in another case but rather whether it represents the controlling law in this cas e. This issue is governed by the ‘law of the case’ doctrine rather than the FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339816 principle of stare decisis. Under this doctrine, a decision by an equally divided court becomes the law of the case, which is binding upon all lower courts, even though it may have no prece dential weight in other cases. [Ibid. (citation omitted).] The Appellate Division was “satisfi ed that Justice Handler’s opinion represents the law of this case, and th at it is binding upon both the trial court and this court.” Id. at 303. This Court unanimously affirmed th e Appellate Division’s decision in Abbamont, substantially for the reasons stated in Judge Skillman’s opinion, summarizing the decision it affirmed as follows: Judge Skillman concluded that this Court’s affirmance of Abbamont v. Piscataway Township Board of Education, 238 N.J. Super. 603 (App. Div. 1990), by an equally divided Court on the question whether a punitive damage claim under [CEPA] may be maintained against a public entity, 138 N.J. 405 (1994) (Abbamont I), constituted th e controlling law under the ‘law of the case’ doctrine, and therefore was binding on the lower courts in this case. 314 N.J. Super. at 301- 03. [Abbamont, 163 N.J. at 14.] Thus, this Court confirmed that Ju stice Handler’s concurring opinion in its prior decision in Abbamont -- a deci sion that the Appellate Division termed the “prevailing opinion” and this Court characterized as the “controlling law” FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339817 -- constituted the governing law for subse quent proceedings in the Abbamont case. Ibid. That principle applies with equal for ce in a criminal setting. In State v. Manzie, a six-member Cour t equally divided on the question whether the No Early Release Act (NERA), N.J.S.A. 2C: 43-7.2, as the statute then provided, applied to a sentence for murder . 168 N.J. 113, 114-23 (2001) (Stein, Coleman, and Zazzali, JJ., concurring). Three justices joined a concurring opinion stating that NERA did not apply to sentences for murder, id. at 114-20, and three justices dissented, stating that NERA applied to sentences for murder, id. at 120-23 (Poritz, C.J., dissenting). In State v. Chavies, 345 N.J. S uper. 254, 276-77 (App. Div. 2001), the Appellate Division reiterate d the holding of Abbamont that a three-to-three decision in the Supreme Court, wh ile not precedential, constitutes the governing law for the case itself. Ther e, the defendant cited the Appellate Division’s decision and the Supreme C ourt’s concurring opinion in Manzie as precedent for his argument that NERA did not apply to his sentence for murder. Id. at 276. Citing Abbamont, the Appellate Division in Chavies noted that in Manzie, “[o]ur Supreme Court affirmed in a per curiam opinion because the members of the Court were equally di vided. The result is that the Supreme FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339818 Court’s decision is binding in Manzie only , as it is essentially the law of that case.” Id. at 277. Thus, although the equally divided Supreme Court’s concurring opinion in Abbamont was not precedential in subsequent cases, it provided the controlling law for the Abbamont case it self. Abbamont, 163 N.J. at 14. In Manzie, the equally divided Suprem e Court’s concurring opinion was not precedential authority for later decisions, but, in that case itself, the decision was “binding on Manzie” as the controlli ng law. Chavies, 345 N.J. Super. at 277. Here, the equally divided Court’ s concurring opinion is indeed not precedential, but it constitutes the c ontrolling law that governs defendant’s appeal. As defendant concedes, the concu rring opinion in this Court applied a standard to the evidence under Rule 3:18-2 that passes constitutional muster; as in the trial court’s review of the mo tion, the concurrence considered defense evidence along with the State’s ev idence under Reyes and Williams. Lodzinski, 246 N.J. at 371-79. The concurring opinion thus accorded defendant the due process to which she was entitled. Defendant’s claim that she has suffered a constitutional violation by virtue of the A ppellate Division’s decision is contrary to this Court’s precedent concerning evenly divided decisions. FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339819 We thus dispute the notion that defendant has guided the Court to recognize “a failing in its prior handlin g of this matter,” which requires “correction” in the form of a rehearing before a reconstituted Court. Ante at ___ (slip op. at 7) (order granting motion for reconsideration). As the record and this Court’s precedent make clear, th ere was no due proce ss violation, and no “failing” in this Court’s dete rmination of defendant’s appeal. Accordingly, we voted to deny defendant’s motion for r econsideration.
III. Defendant’s motion for reconsiderati on is governed by Rule 2:11-6(b). The first sentence of that provision stat es that “[a] motion for reconsideration will be granted only if it is moved by a justice or judge who concurred in the judgment or decision, and a majority of the court so determines.” R. 2:11- 6(b). As this Court has explained, “[a] motion for reconsider ation requires, in addition to ‘a majority of the court,’ th at a justice or judge who concurred in the original decision be part of the ma jority deciding to rehear the case.” Abbott v. Burke, 206 N.J. 332, 374 ( 2011) (quoting R. 2:11-6(b)). Our Appellate Division colleague’s vote to grant reconsideration satisfies the second of Rule 2:11-6(b)’s two requirements -- that a majority of the Court favor reconsideration -- but no t the Rule’s first mandate. Because our Appellate Division coll eague was not called upon to participate in the FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339820 original decision, and was assigned to join the Court only at this late stage, he is not “a justice or judge who concurred in the original decision.” Abbott, 206 N.J. at 374; see also R. 2:11-6(b). That leaves only the three members of the Court who dissented from the Court’s decision. See Lodzinski, 246 N. J. at 384-402 (Albin, J., dissenting). By dissenting from the decision, our co lleagues made it abundantly clear that they did not “concur[] in the judgment or decision,” as Rule 2:11-6(b) requires. The terms “concur” and “dissent” c onvey opposing concepts. Compare Black’s Law Dictionary 363 (11th ed. 2019) (defining “concur” to mean “[t]o agree; to consent”), with id. at 595 (d efining a “dissent” as “[a] disagreement with a majority opinion, esp. among judges”). Our colleagues neverthele ss postulate that “[a]ny member of the Court who joined the per curiam portion of our earlier decision may serve as the justice ‘who concurred in the judgment or decision’ on which reconsideration is sought, for purposes of Rule 2:11-6(b) .” Ante at ___ (slip op. at 5) (order granting motion for reconsideration). Respectfully, our colleagues’ reasoning, contrived to support defenda nt’s application, is nonsensical. When this Court is equally divided, and therefore issu es a per curiam opinion affirming an Appellate Division decision, the justices who dissented in that appeal have not FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339821 “concurred” in the per curiam decision; they dissent from it, because they would reverse the decision below. To the extent that our colleagues rely on their agreement with the concurring opinion’s statement of the standard governing post-verdict motions for a judgment of acquittal to declare themselves justices “who concurred in the judgment or decision” for purposes of Rule 2:11-6(b), their position contravenes the plain language of the Rule. Rule 2: 11-6(b) does not authorize reconsideration merely because a dissen ting justice or judge who concurs with one or more general legal principles st ated in the challenged decision votes to reconsider; had the Court intended to impose such a low bar, it would have done so. To the contrary, the Rule does not authorize reconsideration unless at least one justice or judge who concu rred with the challenged “judgment” or “decision” votes for rehearing. R. 2:11- 6(b). In other words, reconsideration cannot be granted unless a justice or judge who voted in favor of the original result later supports rehearing. Ibid. The Rule is plainly intended to limit reconsideration to the settings in which th e views of at least one member of the Court who previously supported the outcome have changed. That has not occurred here. At ev ery stage, our dissenting colleagues disputed the outcome of this appeal. Addressing a legal principle on which the concurring and dissenting opinions agreed , our colleagues made clear that their FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339822 adherence to that principle should not be mistaken for an agreement with the decision itself. They concurred “that ou r state’s legal standard for a judgment of acquittal -- as opposed to how that st andard was applied in this case -- does not offend due process.” Lodzinski, 246 N. J. at 385 n.1 (Albin, J., dissenting). They found no common ground with the “judgment or decision” in this case. Indeed, our colleagues described the C ourt’s decision as a miscarriage of justice of historic proportions. They de clared that “[i]n the modern annals of New Jersey legal history, as recorded in the New Jersey Reports and the Superior Court Reports, to my knowledge , no murder conviction has ever been upheld on such a dearth of evidence.” Id. at 385. They stated that “[t]he checks and balances in our criminal jus tice system have failed at all levels. The decades-long search for the cause of the tragic death of young Timothy has led only to a miscarriage of justice. ” Ibid. They asserted that “[t]he sustaining of the murder conviction in this case on such a paucity of evidence has no parallel in this state, to my know ledge.” Id. at 400. If our colleagues intended to convey the message that they “concurred in the judgment or decision,” as Rule 2:11-6(b) requires, their choice of words was peculiar indeed. Of course, our colleagues did not “concur” in the decision challenged here; they vehemently opposed it. No justice or judge who “concurred in the FILED, Clerk of the Supreme Court, 06 Oct 2021, 08339823 judgment or decision” within the meaning of Rule 2:11-6(b) has voted in favor of reconsideration. Accordingly, th e Order entered today does not comply with Rule 2:11-6(b).
IV. For the foregoing reasons, we respectfully dissent. FILED, Clerk of the Supreme Court, 06 Oct 2021, 083398