(1999); State v. King, 44 N.J. 346, 353-54 (1965); State
in the Interest of S.B., 333 N.J. Super. 236, 241 (App. Div.
2000); State v. Maryland, 327 N.J. Super. 436, 447 (App.
Div. 2000); see also, Mechinsky v. Nichols Yacht Sales, Inc.,
110 N.J. 464, 475 (1988) (holding that a trail court’s
factual findings made pursuant to R. 1:7-4(a) should not
ordinarily be disturbed where “there is substantial
evidence to support [its] implicit finding[s].”). On the
other hand, a trial judge’s interpretation of the law and
the legal consequences that flow from established facts are
not entitled to any special deference. State in the Interest
of S.B., 333 N.J. Super. at 241.
E. Reviewing Actions of Appellate Division Passing on A
Claim That Trial Court’s Fact Findings Were Wrong.
The initial inquiry is whether the Appellate Division
initially approached the review correctly, and if not, the
Supreme Court approaches the case as the intermediate
court should have. If it did approach the case correctly,
then Supreme Court’s review is more limited because a
reviewing court has already considered the matter and the
question is whether the Appellate Division was right or
wrong in sustaining or upsetting the trial court’s
findings. State v. Johnson, 42 N.J. 146, 163 (1964).
F. Motion for New Trial - Weight of the Evidence
The appellate court will not consider an argument
that a jury verdict was against the weight of the evidence
unless the appellant moved for new trial on that ground.
R. 2:10-1; State v. McNair, 60 N.J. 8, 9 (1972); State v.
Baker, 303 N.J. Super. 411, 414-15 (App. Div.), certif.
denied, 151 N.J. 470 (1997); State v. Warmbrun, 277
N.J. Super. 51, 66 (App. Div. 1994), certif. denied, 140
N.J. 277 (1995); State v. Ross, 249 N.J. Super. 246, 253
(App. Div. 1991); State v. Johnson, 203 N.J. Super. 127,
133 (App. Div.), certif. denied, 102 N.J. 312 (1985); but
see Fiore v. Riverview Medical Center, 311 N.J. Super. 361,
363 n. 1 (App. Div. 1998) (noting that application of R.
2:10-1 to bar a criminal defendant from arguing that a
guilty verdict is against the weight of the evidence may
implicate constitutional rights which are not at stake in
a civil appeal). However, the reviewing court may
proceed to the merits in the interest of justice. State v.
Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif.
denied, 134 N.J. 476 (1993); State v. Pickett, 241 N.J.
Super. 259 (App. Div. 1990); see also State v. Saunders,
302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151
N.J. 470 (1997).
The standard for granting a motion for new trial is set
forth in R. 3:20-1. The trial judge “shall not set aside a
jury verdict as against the weight of the evidence unless,
having given due regard to the opportunity of the jury to
pass upon the credibility of witnesses, it clearly and
convincingly appears that there was a manifest denial of
justice under the law.” This same standard is essentially
the same on appellate review. State v. Brown, 118 N.J.
595, 603 (1990). R. 2:10-1 provides that “whether a
jury verdict was against the weight of the evidence shall
not be reversed unless it clearly appears that there was a
miscarriage of justice under the law.” The standard is
whether “reasonable minds might accept the evidence as
adequate to support the jury verdict.” State v. Conway,
193 N.J. Super. 133, 150 (App. Div.), certif. denied, 97
N.J. 651 (1984), citing Dolson v. Anastasia, 55 N.J. 2, 6
(1969). Jurors are free to accept or reject, in part or in
whole, any aspect of testimonial evidence based on
credibility. State v. Conway, supra, citing State v.
Coleman, 46 N.J. 16, 43 (1965), cert. denied, 383 U.S.
950, 86 S.Ct. 1210, 16 L.Ed.2d 212 (1966).The reviewing court must “weigh heavily” the trial
court’s views on “credibility of witnesses, their demeanor,
and [the trial court’s] general ‘feel of the case.’” State v.
Sims, 65 N.J. 359, 373 (1974). If the trial court acts
under a misconception of the applicable law, however,
the appellate court need not give such deference. State v.
Brown, 118 N.J. at 603, citing State v. Steele, 92 N.J.
Super. 498, 507 (App. Div. 1966); see also Baxter v.
Fairmont Food Co., 74 N.J. 588, 598-600 (1977) (judge
must have pervading sense of “wrongness” in overturning
jury verdict; “feel of the case” factor does not control
appellate review when trial court’s “subjective
conclusions” are not supported by the record).
Moreover, Brown holds that to the extent that the weight
of the evidence is germane to its decision, the trial court
ought not to engage in a weighing of the persuasiveness
of that evidence but only of its sufficiency. The trial
judge’s decision is not entitled to any special deference
where it rests upon a determination as to worth,
plausibility, consistency, or other tangibles consider-
ations apparent from the face of the record with respect
to which the trial judge is no more peculiarly situated to
decide than the appellate court. 118 N.J. at 603.If the reviewing court grants a motion for new trial on
the ground that the verdict is against the weight of the
evidence, acquittal is not required, even though a reversal
based on insufficient evidence would require acquittal.
Tibbs v. Florida. 457 U.S. 31, 42-43, 102 S.Ct. 2211,
2218, 72 L.Ed.2d 652 (1982);