Matthews, Seidman and Horn. The opinion of the court was delivered by Horn, J.A.D.
[150 NJSuper Page 438] Defendants Jose Muniz and Lynda Muniz, his wife, were charged with abusing and being cruel to their daughter Joanne (first count) and with neglecting said
daughter (second count), both in violation of N.J.S.A. 9:6-3. Jointly tried to a jury, Jose was convicted of cruelty on the first count and acquitted of neglect on the second count. Lynda was acquitted of abuse and cruelty on the first count and convicted of neglect on the second count.
The judge sentenced Jose to a term of 18 months in the Hudson County Penitentiary and Lynda to a term of one year in the same institution. Lynda's sentence was suspended and she was placed on probation for three years. This appeal by both defendants followed.
Defendants contend that they are each entitled to a reversal of their respective convictions for numerous reasons which are related hereafter.
At the close of the State's case both defendants unsuccessfully moved for judgments of acquittal. These motions were renewed after the evidence of all parties had been closed. The judge reserved decision. Following the verdicts each defendant moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. The judge denied the motions. Since the test as to whether a motion for acquittal and a motion for judgment notwithstanding the verdict is the same, State v. Kluber , 130 N.J. Super. 336, 341 (App. Div. 1974), certif. den. 67 N.J. 72 (1975), we will consider these motions together.
Whether the judge considers a motion for judgment of acquittal at the close of the State's case or after all the evidence is closed the test to be applied is the same -- whether the evidence submitted by the State, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Reyes , 50 N.J. 454, 459 (1967); State v. Fiorello , 36 N.J. 80, 86-87, 90-91 (1961), cert.
den. 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962); State v. Kluber, supra , 130 N.J. Super. at 341-342. 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, supra.
The State, in addition to introducing in evidence the grand jury testimony of defendants, also presented testimony of Daisy Castillo, sister of Jose, and of a registered pediatric nurse and a physician, both of whom are affiliated with St. Mary's Hospital.
The evidence tended to establish that defendants were married and were the parents of Joanne, who was born on September 17, 1973. She was about five weeks old on October 29, 1973. On the latter date, sometime around eight o'clock in the morning, defendants brought Joanne to St. Mary's Hospital. Examination revealed two bruises in the rib area, bilateral fractures of eight ribs,*fn1 a distended and rigid abdomen, scratches on her face and upper thighs, two ulcerated patches at the back of her throat, sores around her lips, crusted area around the umbilicus, cradle cap, dirt under both arms, discoloration at the right and left lower rib areas, continued crying and rapid respiration.
When lifted by the doctor the child's ribs "crunched." The doctor testified that the ribs of a five-week infant are more elastic than those of an adult and hence are difficult to break. He also stated that in his opinion the rib injuries were sustained within 28 to 48 hours of admission, but that it was more likely that the injuries occurred within 10 to 12 hours of admission. This latter conclusion was arrived at because a baby with such multiple fractured ribs would cry,
refuse feedings and would cause anyone taking care of ...