G. Denial of Motion for Judgment of Acquittal
The standard governing a motion for judgment of
acquittal at the close of the State’s case is set forth in R.
3:18-1. The court must deny the motion if viewing the
State’s evidence, both direct and circumstantial, in its
entirety, and giving the State the benefit of all reasonable
inferences, a reasonable jury could find guilt beyond a
reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59
(1967); see State v. Thomas, 132 N.J. 247, 256-57
(1993); State v. Palacio, 111 N.J. 543, 549 (1988). The
Reyes standard is consistent with the sufficiency
articulated in Jackson v. Virginia, 443 U.S. 307, 318-19,
99 S.Ct. 2788-89, 61 L.Ed.2d 560, 573-74 (1979).
State v. Kittrell, 145 N.J. 112, 130 (1996). Our courts
recognize that in that approach a jury may draw an
inference from a fact whenever it is more probable than
not that the inference is true; the veracity of each
inference need not be established beyond a reasonable
doubt. State v. Brown, 80 N.J. 587, 592 (1979); State v.
Taccetta, 301 N.J. Super. 227, 240 (App. Div.), certif
denied, 152 N.J. 187 (1997). Circumstantial evidence
need not preclude every other hypothesis in order to
establish guilt beyond a reasonable doubt. Id.; citing
State v. Mayberry, 52 N.J. 413, 436 (1968), cert. denied,
393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed.2d 593 (1969).
Additionally, it is a jury function, not the function of the
reviewing court, to evaluate witness credibility and the
weight and worth of the evidence. See State v. Ingenito, 87
N.J. 204, 211 (1981). Appellate review is limited to the
correction of injustice resulting from a plain and obvious
failure of the jury to perform its duty. State v. Taccetta,
supra.
When the motion for judgment of acquittal
notwithstanding the verdict (n.o.v.) is made after the jury
verdict, the same standard applies, i.e., only the State’s
evidence will be considered. 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. Sugar, 240
N.J. Super. 148, 152-53 (App. Div. 1990); State v.
Kluber, 130 N.J. Super. 336, 341-42 (App. Div. 1974),
certif. denied, 67 N.J. 72 (1975). If a defendant has been
convicted of a lesser included offense, and makes a motion
for judgment of acquittal n.o.v., a different standard
applies. Because defendant has had the benefit of
submission of the lesser included charge to the jury based
on proofs adduced in the defense case, then the
sufficiency of the evidence is tested by the whole record,
not just the State’s proofs, in deciding whether the
conviction for the lesser included offense can be
sustained. State v. Sugar, supra, at 153.
In reviewing a denial of a motion for judgment of
acquittal pursuant to R. 3:18-1, or a motion for
judgment of acquittal n.o.v. pursuant to R. 3:18-2, the
appellate court applies the same test as was used by the
trial court. State v. Moffa, 42 N.J. 258 (1964); State v.
Johnson, 287 N.J. Super. 247, 268 (App. Div.), certif.
denied, 144 N.J. 587 (1996); State v. Kluber, supra.Reversal on the ground that the evidence was
insufficient to warrant a conviction requires acquittal.
Hudson v. Louisiana, 450 U.S. 40, 43, 101 S.Ct. 970,
972, 67 L.Ed.2d 30, 33 (1981); Burks v. United States,
437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).F. Guilty Pleas
R. 3:9-2 sets forth the steps a trial court must take in
order to properly accept a guilty plea. (See also, GUILTY
PLEAS and PLEA BARGAINING, this Digest). If the
record shows that the judge failed to take the required
steps to accept a guilty plea, the appellate court can
remand for new trial or a new plea. State v. Rhein, 117
N.J. Super. 112, 121 (App. Div. 1971)( if bargained
guilty plea is set aside, defendant should not emerge free
of the collaterally dismissed charges but only of the
bargain); see also State v. Gibson, 68 N.J. 499, 512
(1975); State v. Nichols, 71 N.J. 358, 361 (1976); State
v. Dishon, 222 N.J. Super. 58, 62 (App. Div. 1987). No
action is required if the failure to comply with any
requirement is deemed harmless. The court has the
discretion to refuse to accept a guilty plea. See State v.
Daniels, 276 N.J. Super. 483, 487 (App. Div. 1994),
certif. denied, 139 N.J. 443 (1995), rejecting limitations
on judicial discretion set forth in State v. Blise, 244 N.J.
Super. 20, 30 (Law Div. 1990). The standard of review
is whether the judge abused his discretion, not whether
the recommended bargain constituted an abuse of
prosecutorial discretion. Daniels, supra.G. Waiver by Guilty Plea
Entry of an unconditional plea of guilty to the charge
constitutes a waiver of any non-jurisdictional constitu-
tional challenge. Tollett v. Henderson, 411 U.S. 258,
267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973); State v.
Crawley, 149 N.J. 310, 316 (1997); State v. Szemple, 332
N.J. Super. 322, 328 (App. Div. 2000); State v. Smith,
307 N.J. Super. 1, 7 (App. Div. 1997), certif. denied, 153
N.J. 216 (1998); State v. Morales, 182 N.J. Super. 502
(App. Div. 1981), certif. denied, 89 N.J. 421 (1982). As
stated by the United States Supreme Court in Tollett: “A
guilty plea represents a break in the chain of events which
has preceded it in the criminal process. When a criminal