Fritz, Seidman and Milmed.
Defendant, tried with another, was convicted on trial by jury of possession of a firearm without a permit. N.J.S.A. 2A:151-41(a). He moved
1. The verdict is contrary to the weight of the evidence as produced by the State;
2. The verdict is not supported by substantial evidence sufficient to convict;
3. The evidence fails to support the allegations of the Indictment which alleges that Oscar Rodriguez did possess the 357 magnum revolver;
Following oral argument of these motions, the trial judge found that defendant Rodriguez
Accordingly, he granted defendant's motion pursuant to R. 3:18-2 and entered judgment for defendant notwithstanding the jury verdict. The State appealed in accordance with R. 2:3-1(b)(3). See State v. Kleinwaks , 68 N.J. 328
(1975). In passing we observe that had a new trial been granted pursuant to the motion under R. 3:20-1, the State would have had a right to seek leave to appeal. State v. Sims , 65 N.J. 359 (1974).
The State asserts, as grounds for its appeal:
Point I. A Motion for a Judgment of Acquittal N.O.V. Should Not Be Granted When a Jury Returns a Verdict of Guilty Unless There Has Been a Manifest Denial of Justice.
Point II. The Trial Judge Erred in Granting a Motion for a Judgment of Acquittal N.O.V. After the Jury Verdict of Guilty Since the Logical Inferences Which Could Be Drawn From Evidence Presented by the State Support the Jury Verdict.
First of all, we observe that the State, properly citing State v. Kluber , 130 N.J. Super. 336 (App. Div. 1974), certif. den. 67 N.J. 72 (1975), in its argument, seems not to understand that opinion. In both the argument headings and the text of its brief the State suggests that the judge erred because there was no showing of a manifest denial of justice. This is not the test on a R. 3:18-2 motion for a judgment of dismissal notwithstanding the verdict, but is rather the test on a R. 3:20-1 motion for new ...