after the verdict or finding of guilty, or within such
further time as the court fixes during the 10-day period.
Where an appeal is pending and defendant moves for
a new trial on the ground of newly discovered evidence,
the merits of the motion should first be considered by the
trial court but after the disposition of the appeal. State v.
Cappadona, 127 N.J. Super. 555, 559-60 (App. Div.
1974), certif. denied, 65 N.J. 574 (1974), cert. denied,
419 U.S. 1034 (1974).
A motion for new trial based on the ground that the
verdict was against the weight of the evidence must be
made in the trial court in order to preserve that ground
on appeal. R. 2:10-1. See State v. McNair, 60 N.J. 8, 9
(1972); State v. Smith, 262 N.J. Super. 487 (App. Div.),
certif. denied, 134 N.J. 476 (1993); State v. Pickett, 241
N.J. Super. 259, 266 (App. Div. 1990); State v. Johnson,
203 N.J. Super. 127, 133 (App. Div.), cert. denied, 102
N.J. 312 (1985).
2. Based Upon Weight of the Evidence
A trial judge shall not “set aside the verdict of the jury
as against the weight of the evidence unless, having given
due regard to the opportunity of the jury to pass upon the
credibility of the witnesses, it clearly and convincingly
appears that there was a manifest denial of justice under
the law.” R. 3:20-1. The standard is whether
“reasonable minds might accept the evidence as adequate
to support the jury verdict.” Dolson v. Anastasia, 55 N.J.
2, 6 (1969). In ruling on such a motion, the objective is
not to second-guess the jury but to correct an injustice
that would result from an obvious jury error. State v.
Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif.
denied, 151 N.J. 470 (1997). The weight of the evidence
argument only applies to jury trials. State in Interest of
R.V., 280 N.J. Super. 118, 121 (App. Div. 1995).
Under R. 2:10-1, a new trial motion must be made
in the trial court to preserve for appeal the weight of the
evidence issue. Nonetheless, an appellate court may
consider the merits of defendant’s argument in the
interest of justice. State v. Scherzer, 301 N.J. Super. 363,
407 (App. Div.), certif. denied, 151 N.J. 466 (1997).
3. Based Upon Subsequent Recantation by Trial Witnesses
Our courts regard recantation of testimony as
inherently suspect. State v. Carter, 69 N.J. 420, 427
(1976); State v. Engel, 249 N.J. Super. 336, 385-87 (App.
Div.), certif. denied, 130 N.J. 393 (1991). The
appropriate test is “whether the testimony given at the
trial was probably false” and whether “on that account
there is a substantial possibility of [a] miscarriage of
justice.” Id. at 386, quoting State v. Baldwin, 47 N.J.
379, 400 (1966), cert. denied, 385 U.S. 980 (1966). The
credibility determination of recantation testimony is
peculiarly a question for the trial judge. State v. Carter,
69 N.J. at 427; State v. Engel, 249 N.J. Super. at 386.
Appellate courts should defer to trial judges on this issue.
Id.- Based Upon Newly Discovered Evidence
Newly discovered evidence warrants a new trial only
if the evidence is: (1) material to the issue and not merely
cumulative, impeaching or contradictory; (2) discovered
since trial and not discoverable by reasonable diligence
beforehand; and (3) of the sort that would probably
change the jury’s verdict if a new trial were granted. State
v. Bey, 161 N.J. 233, 287 (1997), cert. denied, 120 S.Ct.
2693, 147 L.Ed.2d 964 (2000); State v. Carter, 85 N.J.
300, 314 (1981); State v. Russo, 333 N.J. Super. 119,
136-37 (App. Div. 2000); State v. Henries, 306 N.J.
Super. 512, 529 (App. Div. 1997). All three requisites of
this tripartite test must be met. State v. Engel, 249 N.J.
Super. at 402. Moreover, where the credibility of newly
proffered testimony is at issue, deference should be
accorded the trial judge’s assessment of the proffered
evidence and his first-hand familiarity with the case. State
v. Puchalski, 45 N.J. 97, 108 (1965). Courts are skeptical
of after-acquired statements from witnesses with an
interest in the outcome of the case. Id.A new trial on the ground of newly discovered
evidence cannot be granted where the evidence on which
defendant relies was either discoverable by reasonable
diligence prior to trial or consisted of hearsay. State v.
Hall, 183 N.J. Super. 224 (App. Div. 1982), aff’d, 93
N.J. 552 (1983), cert. denied, sub. nom. Hall v. New Jersey,
464 U.S. 1008 (1983).5. Based Upon Alleged Violation of Brady v. Maryland, 373 U.S. 83 (1963)
See State v. Russo, 333 N.J. Super. at 134. See also
DISCOVERY, this Digest.IV. RESTRICTIONS PLACED UPON JUDGES
A. Disqualification
Both a court rule, R. 1:12-1, and a statute, N.J.S.A.
2A:15-49, govern the potential disqualification of a