Lynch, Larner and Horn. The opinion of the court was delivered by Larner, J.A.D.
[142 NJSuper Page 277] After a jury trial defendant was convicted of rape (N.J.S.A. 2A:138-1), atrocious assault and battery (N.J.S.A. 2A:90-1) and robbery (N.J.S.A.
2A:141-1). The court sentenced him to aggregate terms of 18 to 35 years in State Prison.
Among the appellate contentions asserted by defendant are: (1) he was deprived of his Sixth Amendment right to effective assistance of counsel; (2) the verdict was against the weight of the evidence, and (3) the sentence was manifestly excessive. We have considered these contentions and find them to be clearly without merit.
We are constrained, however, to reverse the conviction on another ground urged by defendant relating to the voir dire of one of the jurors who participated throughout the trial and the rendering of the verdict.
Approximately ten days after the verdict, one of the jurors forwarded a letter to the trial judge informing him that another juror, John Zaccaro, may have acted improperly. She pointed out that Zaccaro had informed the other jurors during their deliberations that he had served as a guard in a correctional institution about 25 years before and is presently serving on a juvenile hearing board in a municipality in the Trenton area. The writer expressed her concern over this revelation because when the jury panel was questioned on voir dire Zaccaro did not reveal these facts and because she noted that he made repeated references in the jury room to his familiarity with criminals and how they act as a result of his prior dealings with them.
Upon receipt of this letter the trial judge conducted an in camera interview of the writer in the presence of both counsel. At this time the juror repeated in substance the facts contained in the letter. Thereafter defendant's motion for a new trial was denied.
The record reveals that the court submitted the following questions to the jury panel on the voir dire examination:
Are you presently employed in any law enforcement work at any level of government whether State, municipal, county, et cetera, are you presently employed in any law enforcement work?
Have you ever in the past been employed in any such law enforcement work at any level of government?
Juror Zaccaro offered no response to either of these questions. Investigation by the prosecutor pursuant to our request has confirmed the fact that this juror was temporarily assigned as a corrections officer at Trenton State Prison from June 24 to November 1, 1953.
The trial judge, in denying a new trial, based his determination on a finding that the juror's failure to respond to the question in light of his employment and current participation as a juvenile counsellor was probably the result of misunderstanding or inadvertence. The judge reasoned that the absence of deliberate deception by the juror negated any inherent prejudice on his part. Finally, he concluded that the jury and jury deliberations were not tainted through any demonstrable influence of ...