On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
O'Brien and Gaynor. The opinion of the court was delivered by O'Brien, J.A.D.
Defendant appeals from his conviction on multiple counts of possession and possession with intent to distribute controlled dangerous substances. We reverse and remand.
Defendant was charged with possession of more than 25 grams of marijuana and over five grams of hashish in violation of N.J.S.A. 24:21-20a(4) in counts one and three of a multicount indictment. In counts two, four, five and six, he was charged with possession of over 25 grams of marijuana, over five grams of hashish and cocaine with intent to distribute in violation of N.J.S.A. 24:21-19a(1). The sixth count was dismissed on the prosecutor's motion, and defendant was convicted on the remaining five counts. On counts one, two, three and four, he was sentenced to a concurrent term of five years with a two and one-half year period of parole ineligibility. On count five he was sentenced to a concurrent eight-year term with a two and one-half year period of parole ineligibility. Defendant filed a notice of appeal and was ultimately admitted to bail pending appeal.
Defendant raises the following appellate arguments:
POINT I: THE TRIAL JUDGE ERRED BY INSTRUCTING THE JURY OF THE POTENTIAL FINE AND PERIOD OF INCARCERATION FOR THE CRIME OF POSSESSION OF MORE THAN 5 GRAMS OF HASHISH.
POINT II: THE DEFENDANT WAS DENIED THE RIGHT OF PEREMPTORY CHALLENGE.
POINT III: THE DEFENSE WAS PREJUDICED BY THE FAILURE OF THE STATE TO GIVE NOTICE OF EXPERT WITNESSES AND TESTIMONY.
POINT IV: THE SENTENCE IMPOSED UPON THE DEFENDANT WAS EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION BY THE TRIAL COURT.
We agree that defendant's conviction must be reversed and remanded under Point II of defendant's argument. During jury selection which took place on February 29, 1984, a prospective juror revealed that he had served on jury "last June" in a civil case. The trial judge elicited from the venireman that his prior service would not affect his judgment in this case and that he knew of no reason why he could not sit and render a fair and impartial verdict based upon the evidence and the law as given to him by the court. Thereafter, counsel for defendant challenged the venireman for cause "because he sat as a juror within the past 12 months." The trial judge summarily disposed of the challenge with, "I'm going to deny your request." Counsel then exercised a peremptory challenge to excuse the venireman. Defendant used all of his peremptory challenges, but advised the court that the jury was not satisfactory to defendant and stated:
I just want to place on the record that, had I additional challenges, I might have ...