NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3226-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARIO S. LYN, a/k/a MARIL LYN
and MARIO S. LYN, JR.
Defendant-Appellant.
_______________________________
Submitted June 18, 2018 – Decided July 6, 2018
Before Judges Fisher and Fasciale.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
14-10-2609.
James S. Friedman, attorney for appellant.
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Matthew
E. Hanley, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
After a re-trial, defendant appeals from his convictions for
second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and
N.J.S.A. 2C:15-1(a)(2); and first-degree robbery, N.J.S.A. 2C:15-
1. Although the jury found him guilty of committing these crimes,
it acquitted defendant of third-degree terroristic threats,
N.J.S.A. 2C:12-3(b).1
On appeal, defendant argues:
POINT I
THIS CASE SHOULD HAVE BEEN DISMISSED AT THE
CONCLUSION OF THE STATE'S PRESENTATION OF
EVIDENCE BECAUSE NO REASONABLE JURY COULD HAVE
CONVICTED [DEFENDANT] BASED UPON THE TESTIMONY
HEARD AT TRIAL (Partially Raised Below).
POINT II
THE JURY CHARGES IN THIS CASE WERE INADEQUATE
BECAUSE THEY CONSISTED OF GENERIC STATEMENTS
WITHOUT ANY CASE-SPECIFIC INFORMATION BASED
UPON THE EVIDENCE PRESENTED AT TRIAL (Not
Raised Below).
POINT III
THE TRIAL COURT'S FAILURE TO ALLOW THIS CASE
TO GO TO THE JURY COUPLED WITH THE FAILURE TO
PROVIDE TAILORED JURY INSTRUCTIONS RESULTED IN
CUMULATIVE ERROR (Not Raised Below).
We reject these contentions and affirm.
Defendant filed his motion for acquittal of the terroristic
threats charge – at the end of the State's case – under Rule 3:18-
1, which states in part that "if the evidence is insufficient to
warrant a conviction," the judge may enter "a judgment of
1
At the first trial, where the jury was unable to reach a
verdict, the State dismissed two second-degree weapons charges.
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acquittal." Defendant did not move for an acquittal of the
robbery-related charges.
Defendant's argument in Point I is akin to a contention that
the verdict is against the weight of the evidence. Under Rule
2:10-1, "the issue of whether a jury verdict was against the weight
of the evidence shall not be cognizable on appeal unless a motion
for a new trial on that ground was made in the trial court." See
also R. 3:20-1 (addressing the criteria for setting aside a jury
verdict). Defendant's assertion in Point I is therefore not
properly before us. Nevertheless, there is no basis to set aside
the verdict.
There exists no basis to acquit defendant of the robbery
charges, had he made such a motion. The standard on a motion for
acquittal is well settled. In State v. Reyes, 50 N.J. 454, 458-
59 (1967), our Supreme Court stated that
the question the trial judge must determine
is whether, viewing the State's evidence in
its entirety, be that evidence 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.
"On appeal, we [use] the same standard as the [judge] in
determining whether a judgment of acquittal was warranted." State
v. Ellis, 424 N.J. Super. 267, 273 (App. Div. 2012). There is
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ample evidence for a reasonable jury to find defendant guilty of
the charges beyond a reasonable doubt.
As to the conspiracy to commit robbery and the robbery
charges, the victim testified that defendant and another man robbed
him of his phone, jacket, and shoes, and that defendant threatened
to pistol whip him. The victim identified defendant in-court and
out-of-court as one of the two men, who inferentially were working
together to rob him. And the co-defendant – who pled guilty and
testified for the State – stated that defendant agreed to rob the
victim.
Defendant argues the judge gave a flawed jury charge because
he did not tailor the instructions to the facts adduced at the
trial. In other words, defendant contends the judge failed to
mold the jury charge. He makes this argument – particularly as
to the identification instructions – for the first time on this
appeal.
"Appropriate and proper charges to a jury are essential for
a fair trial." State v. Green, 86 N.J. 281, 287 (1981). "Because
proper jury instructions are essential to a fair trial, erroneous
instructions on material points are presumed to possess the
capacity to unfairly prejudice the defendant." State v. Baum, 224
N.J. 147, 159 (2016) (quoting State v. Bunch, 180 N.J. 534, 541-
42 (2004)).
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But – like here — where there is no objection to the jury
charges, "it may be presumed that the instructions were adequate."
State v. Morais, 359 N.J. Super. 123, 134-35 (App. Div. 2003). "A
claim of deficiency in a jury charge to which no objection is
interposed 'will not be considered unless it qualifies as plain
error . . . .'" State v. R.B., 183 N.J. 308, 321-22 (2005)
(quoting State v. Hock, 54 N.J. 526, 538 (1969)). In reviewing
the adequacy of the judge's charge to the jury, we consider the
charge as a whole in determining whether it was prejudicial. See
State v. Figueroa, 190 N.J. 219, 246 (2007) (citing State v.
Wilbely, 63 N.J. 420, 422 (1973)).
Here, there was nothing clearly capable of producing an unjust
result from the judge's charge to the jury, which tracked the
model jury charges. And as to that part of the charge dealing
with identification, the judge read the in-court and out-of-court
model jury charges and added the names of defendant and appropriate
witnesses.
The remaining argument raised by defendant – that cumulative
error requires a reversal of his convictions – lacks sufficient
merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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