On certification to the Superior Court, Appellate Division.
For Reversal and Remandment -- Chief Justice Wilentz, and Justices Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. Opposed -- None. The opinion of the Court was delivered by Handler, J.
[107 NJ Page 340] This appeal raises the issue of whether it is proper in a criminal case to substitute a juror after a partial verdict has been returned and to allow the reconstituted jury to reach a
final verdict on remaining charges. The Appellate Division, in an unreported opinion, affirmed such a final verdict convicting defendants for various gambling offenses. The Appellate Division stressed that defense counsel requested the substitution of an alternate juror after the original jury had returned a verdict on some but not all of the charges. The Appellate Division also emphasized that the trial court instructed the reconstituted jury to commence its deliberations anew on remaining counts and to consider the remaining charges independently. These circumstances convinced the Appellate Division that the procedure followed by the trial court "did not cut mortally into the substantive rights of the defendant[s]." State v. Harper, 128 N.J. Super. 270, 277 (App.Div.1974), certif. denied, 65 N.J. 574 (1974). This Court granted defendants' petition for certification, 105 N.J. 515 (1986). We disagree with the court below and reverse.
Defendants were indicted and tried on various gambling-related charges.*fn1 After the jury had returned a verdict convicting defendants Munley and Ranuro, under N.J.S.A. 2C:37-4a, of maintaining a gambling resort; defendant Ranuro, under N.J.S.A. 2C:37-2(a), of a disorderly persons offense of promoting gambling; and defendant Corsaro, under N.J.S.A. 2C:37-3a(2), of possession of gambling records, the trial court instructed the jury to continue deliberations as to whether the defendants were guilty under N.J.S.A. 2C:5-2 of conspiracy to
promote gambling, and whether defendant Corsaro was guilty under N.J.S.A. 2C:37-2 of promoting gambling.
When the jury reconvened to resume deliberations, one juror was missing. He arrived over an hour late, and appeared to counsel for defendant Corsaro to be intoxicated. What transpired between court and counsel is critical and cannot be readily summarized or paraphrased. Counsel for Corsaro requested at sidebar that an alternate be substituted. The trial court asked the other counsel for their positions. They responded as follows:
MR. PRINDAVILLE [prosecutor]: I would think it would be better to talk to the man and see what condition -- what his condition appears to be.
MR. CAMMARATA [counsel for Ranuro]: My only problem with your doing it right at this moment is it's going to be obvious to the jury and if you subsequently decide you are going to leave him on it's going to be obvious that we raised the question about him, and they may hold it against us in some fashion. I would suggest to you if you're --
The court interjected some explanation of the procedures it contemplated for substituting an alternate; counsel for defendant Ranuro, however, raised the problem at issue in this case:
MR. CAMMARATA: I'm sorry, I didn't mean to interrupt you, the only problem I have, that I foresee, is that now you're going to start to tell them to start deliberations anew.
THE COURT: I have to tell them that.
MR. CAMMARATA: Yeah, I know you do, I realize that. But, you have a situation where they've come back with partial verdicts, now they're considering a conspiracy charge and that charge as to Laurie Corsaro.
THE COURT: I have no problem with that.
MR. CAMMARATA: I don't know whether --
MISS SOGLUIZZO (counsel for Munley): The person that has been put on hasn't been part of the original deliberation.
THE COURT: That doesn't matter, I wouldn't let them change their minds on the other verdicts if they tried. Those verdicts are taken, once a verdict is taken, that's it.
MR. PRINDAVILLE: They are starting all over now, right?
MR. CAMMARATA: If I could just finish may train of thought. The problem that I foresee is that they are considering a conspiracy charge and they've already made finding of guilty on a substantive charge that is part -- that the conspiracy is directed toward. The Alternates haven't been involved in the deliberations on the substantive charge. Therefore, they will go into the jury room and they are in a position where they are accepting a verdict --
THE COURT: Let me interrupt, are you changing your position?
MR. CAMMARATA: No, I'm just raising a problem.
THE COURT: Well, then, you just raise a problem, okay, you got to take a position.
MISS COSTELLO [counsel for Corsaro]: Judge, my position is I don't think that man should be sitting on this jury.
MISS COSTELLO: I'll object for the record that you're not recharging them again, but I understand your ruling.
THE COURT: You object to what?
MISS COSTELLO: I object for the record that you're not going to charge them to start everything, including --
THE COURT: I will charge them.
MR. PRINDAVILLE: He will charge them.
MISS COSTELLO: Will charge that they are to start anew on the counts that haven't been decided.
THE COURT: Only on the ones that haven't been decided.
MISS COSTELLO: I understand that, I will put an objection on the record, but I'm much more concerned that this man sit in the condition he's in.
MR. CAMMARATA: What my application would be then, in essence, would be if you substituted a juror, and I think it's proper for you to do so based on my observations, of course, you have to do that and I think it's proper because of the juror's condition, but my application, I suppose really is that they start anew on the ...