in, and a part of, the jury verdict. State v. Hauser, 147 N.J.
Super. 221, 228 (App. Div. 1977), certif. denied, 75 N.J.
27 (1977). In State v. Moore, 330 N.J. Super. 535 (App.
Div. 2000), the jury was charged with receiving stolen
property and the lesser included offense of joyriding, and
convicted defendant of the more serious offense.
Following trial, the court acknowledged error in the
State’s proofs on receiving stolen property; it vacated the
jury’s verdict and reduced defendant’s conviction to
joyriding. The Appellate Division, relying on State v.
Hauser, supra, found the error could be cured by reversing
that conviction and substituting the lesser offense as the
trial court did. Id. at 542-43.
In State v. Gallagher, 286 N.J. 1, 14 (App. Div.
1995), certif. denied, 146 N.J. 569 (1996), the Appellate
Division found that molding the verdict to the lesser
included offense of attempted aggravated assault was not
appropriate where the jury was improperly charged on
the convicted offense of aggravated sexual assault by anal
penetration, because the appellate court did not know
which lesser-included offense the jury might have found
defendant committed.
A verdict cannot be molded to a crime, other than,
but related, to the crime for which he was convicted if the
crime actually proved was not charged in the indictment.
State v. Burden, 203 N.J. Super. 149, 157 (Law Div.
1985). In State v. Mergott, 140 N.J. Super. 126, 133
(App. Div. 1976), the jury returned guilty verdicts
against the defendants for the crime of assault with intent
to kill but the Appellate Division held that there was
insufficient evidence to sustain the convictions. In
response to the State’s suggestion that the verdicts should
be molded to the offense of assault with a dangerous
weapon, the court refused and noted that the jury had no
opportunity to consider the weapons offense.
However, a guilty verdict under an incorrect
statutory designation may be molded after conviction so
long as the defendant would not be harmed or
prejudiced. Thus, molding a verdict is proper where the
evidence presented to the grand jury, the proofs at trial
and the procedure followed would all have been the same
even if the proper statute had been charged. State v.
Gledhill, 129 N.J. Super. 113, 117 (App. Div. 1974),
mod. on other gds. 67 N.J. 565 (1975). See also State v.
Fariello, 133 N.J. Super. 114, 121 (App. Div. 1975),
rev’d other gds. 71 N.J. 552 (1976).
Moreover, the jury’s verdict cannot be molded to
conform with its evident intention where it has rendered
a legally unsustainable verdict. See State v. McCoy, 114
N.J. Super. 479 (App. Div. 1971) (rejecting jury’s verdict
of guilty of robbery and holding that a new trial was
required on the attempt charge, the court rejected the
State’s argument that the jury, having convicted
defendant of robbery, would surely have found him
guilty of the attempt had it been properly charged).In State v. Carlos, 187 N.J. Super. 406 (App. Div.
1982), the Appellate Division noted that a guilty verdict
on a greater offense may be molded and reduced by a
court to convict on a lesser included offense on a finding
that the conviction for the greater offense was not
justified. See also State v. Singleton, 308 N.J. Super. 407,
414 n.1 (App. Div. 1998).III. POST-TRIAL MOTIONS
A. Motion for Judgment of Acquittal After Discharge of
Jury (See R. 3:18-2, “Motion After Discharge of Jury”)The standard to be applied by the trial court in
determining the motion is the same as that applicable to
a motion for acquittal made at end of State’s case or at end
of the entire case, that is, “whether the evidence, viewed
in its entirety, be it direct or circumstantial, and giving
the State the benefit of all of its favorable testimony as well
as all of the favorable inferences which reasonably could
be drawn therefrom, is sufficient to enable a jury to find
that the State’s charge has been established beyond a
reasonable doubt.... On such a motion the trial judge
is not concerned with the worth, nature or extent
(beyond a scintilla) of the evidence, but only with its
existence, viewed most favorably to the State.” State v.
Kluber, 130 N.J. Super. 336, 341-342 (App. Div. 1975),
certif. denied, 67 N.J. 72 (1975); See also State v.
Kleinwaks, 68 N.J. 328 (1975); State v. DeRoxtro, 327
N.J. Super. 212, 224 (App. Div. 2000); State v. Speth,
323 N.J. Super. 67, 81 (App. Div. 1999); State v.
Rodriguez, 141 N.J. Super. 7, 11-12 (App. Div. 1976),
certif. denied, 71 N.J. 495 (1976) (distinguishing
standard under this rule from standard applicable to new
trial motion under R. 3:20-1).B. Motion for New Trial
1. Procedural Questions
Pursuant to R. 3:20-2, a motion for new trial based
on the ground of newly discovered evidence may be made
at any time. A motion for new trial based on a claim that
defendant did not waive his or her appearance for trial
must be made prior to sentencing. A motion for new trial
based on any other ground shall be made within 10 days