On appeal from Superior Court, Law Division, Ocean County.
Lora, Michels and Larner. The opinion of the court was delivered by Larner, J.A.D.
After a five-day jury trial Harold Lipsky, an attorney, and Christina Canaley were convicted on three counts of an indictment which charged both of them with conspiracy to obstruct justice, perjury by Canaley and subornation of perjury by Lipsky. While defendants advance several grounds of error, we deem it necessary to consider only the issue dealing with the substitution of an alternate juror during jury deliberations pursuant to R. 1:8-2(d). Unfortunately, the procedural deficiencies in the implementation of this process compels a reversal of the judgment of conviction.
Preliminarily, we note that appellants' attack upon the facial constitutionality of the pertinent procedural device of R. 1:8-2(d) authorizing the substitution of an alternate
juror during deliberations because of the inability of a member of the jury to continue is no longer viable. The case of State v. Miller , 76 N.J. 392 (1978), decided after the trial herein, set this question at rest in its holding that the rule itself is free from constitutional infirmity. We are therefore concerned with the propriety of the trial judge's implementation of the rule rather than its facial validity.
After the completion of the trial at about 1:30 P.M. on a Friday, the fifth day of trial, the judge drew the names of two alternates from the roster of 14 jurors and sent out the remaining 12 members to commence their deliberations. The alternates were sequestered until 4 P.M., at which time the judge permitted them to leave after securing their telephone numbers where they could be contacted. No specific instructions were given to these alternates when they were sequestered or when they were excused to leave the courthouse.
At about 6:15 P.M. one of the jurors, Ms. Bosch, informed the court that she was ill. The colloquy with this juror consisted of the following:
THE COURT: Ms. Bosch, do you feel ill?
THE COURT: Would you be able to if you felt good to continue tomorrow or Monday?
Ms. Bosch: I can continue Monday. Right now I wasn't ...