[brief] THE COURT ERRED IN DENYING DEFENDANT’S MOTION FOR A JUDGMENT OF ACQUITTAL BECAUSE THE STATE FAILED TO PRESENT EVIDENCE THAT DEFENDANT ACTED UNNECESSARILY OR CRUELLY.  (3T 15-22 to 18-4)  [...] moved at the end of the State’s case for a judgment of acquittal under Rule 3:18-1 on the ground that the “State [had]n’t shown that he unnecessarily or cruelly beat or cruelly abused” the animal.  (3T 14-6 to 8)  The court denied the motion, concluding that the jury could find that “[s]omebody pulling a dog’s head up by a leash and punching it for really no apparent reason and also kicking it prior to that” could constitute the offense.  (3T 17-22 to 18-4)  However, an individual can only be convicted of the fourth-degree offense if the jury finds evidence that he tormented, tortured, maimed, hung, poisoned, unnecessarily or cruelly beat, cruelly abused, or needlessly mutilated an animal.  See N.J.S.A. 4:22-17(c)(1).  As explained in Point I, without evidence that he acted unnecessarily or cruelly, [...] could not be convicted of fourth-degree animal cruelty.  Because the State did not present sufficient evidence that [...] acted unnecessarily or cruelly, the offense should not have been submitted for the jury’s consideration.  A criminal defendant’s conviction cannot stand “except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. ”  *In re Winship*, 397 U.S. 358, 364 (1970).  An offense should not be submitted for the jury’s consideration unless the State has presented evidence “sufficient to warrant a conviction of the charge involved. ”  *State v. Reyes*, 50 N.J. 454, 458-59 (1967).  A court must “giv[e] the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom,” and determine whether “a reasonable jury could find guilt of the charge beyond a reasonable doubt. ”  *Ibid.*  As discussed in detail in Point I, to constitute cruelty, the State was required to prove that [...] inflicted unnecessary pain or suffering, or prolonged torment, upon the animal.  The State failed to carry that burden.  On the contrary, the testimony of the State’s own veterinarian who examined the dog the day after the events in question established that the dog had no signs of bruising, no signs of trauma, and no fractures.  (2T 86-8 to 87-1)  Alternatively, the State could have met its burden by adducing evidence that [...]’s actions were legally “unnecessary,” but none of its witnesses testified about events preceding the alleged punching or kicking.  Giving all favorable inferences to the State, its presentation at trial was limited to evidence that [...] was seen to strike and drag the dog.  That is insufficient for conviction under N.J.S.A. 4:22-17(c)(1).  Therefore, fourth-degree animal cruelty should not have been submitted to the jury in the absence of evidence that [...] tormented, tortured, maimed, hung, poisoned, unnecessarily or cruelly beat, cruelly abused, or needlessly mutilated the dog.  N.J.S.A. 4:22-17(c)(1).  The erroneous denial of his Reyes motion deprived [...] of his right to due process and a fair trial under the State and Federal Constitutions.  U.S. Const., amends. VI & XIV; N.J. Const., art. I, ¶¶ 1 & 10.  [...]’s conviction must be reversed.