On appeal from the Superior Court of New Jersey, Law Division, Burlington County.
Pressler, Baime and Arnold M. Stein. The opinion of the Court was delivered by Arnold M. Stein, J.A.D.
Defendant was found guilty of possession of cocaine (N.J.S.A. 24:21-20a(1)), possession of cocaine with intent to distribute (N.J.S.A. 24:21-19a(1)), and distribution of cocaine (N.J.S.A. 24:21-19.1a(1)). The trial judge sentenced defendant to three concurrent five-year terms, each with a two-and-one-half-year period of parole ineligibility. A total VCCB penalty of $90 was also imposed. We reverse because the voir dire conducted by the trial judge during the jury selection process was so inadequate that it deprived defendant of his constitutional right to a fair and impartial trial by jury. N.J. Const. of 1947 art. I, para. 9.
The State presented evidence that defendant sold one gram of cocaine to Robert O'Leary, an undercover narcotics detective for the New Jersey State Police. The sale took place at defendant's residence. O'Leary testified that he paid defendant $50 for the cocaine. Defendant presented no defense. He attempted to demonstrate that he was the victim of either contrived evidence or mistaken identity.
In addition to asking specific background questions (residence, occupation, marital status and occupation of spouse if married) of the individual jurors seated in the box, the trial judge addressed three general questions to the entire panel:
[H]ave you ever previously participated in a criminal jury trial, either as a juror or as a witness?
Let me ask if you or any person close to you, a close relative or a close friend, has been the victim of any type of crime?
[D]o any of you have a person who is close to you by way of either being related or a friend who is engaged in police work as a policeman, patrolman, a detective, a marshal, a jail guard, anything of the sort?.
The trial judge refused defense counsel's request that the jurors be asked the following questions:
[W]hether or not the fact that a given witness may be a police officer would . . . cause them to tend to credit his testimony more or less than any other witness.
[W]hether or not any of the jurors have had any friends or relatives who have experienced a drug problem.
In refusing to ask the first question the judge stated:
I have seen that question asked two times, and both times it was a disaster for the defendant.
The one -- the first time in front of me, the juror was very articulate. He thought for a minute. He says, "Yes, I would because ...