On appeal from Superior Court of New Jersey, Law Division, Union County.
King, Brody and Landau. The opinion of the court was delivered by Brody, J.A.D.
[262 NJSuper Page 393] Defendant was sentenced to prison for ten years after a jury found him guilty of second-degree sexual assault. The verdict was returned on the third day of trial. We reverse the conviction because the trial Judge erroneously excused a juror during
deliberations and then erroneously designated one of the alternates to replace the juror without having the clerk draw the name of the substitute juror by lot as required by R. 1:8-2(d).
After the jury had been deliberating for almost an hour, it sent the Judge a note that read, "There's one juror that doesn't want to be." The Judge questioned the juror out of the presence of the other jurors as follows:
THE COURT: Miss Pollack, do I take it right that you don't want to participate?
MISS POLLACK: I just can't, can't make an opinion on this case --
MISS POLLACK: -- Yes or no, you know. Then -- they all are ganging up on me now.
THE COURT: I don't want to know --
MISS POLLACK: That's what --
THE COURT: Listen to me. I don't want to hear from you what they are saying in there. I don't want to know from you what your position is on this case.
My question of you is, are you willing to sit and discuss the case with them?
MISS POLLACK: No, I don't want to.
THE COURT: You don't want to?
MISS POLLACK: They have a feeling that I'm not going to go with them or something, is what they are saying.
THE COURT: Do you understand what your function is?
THE COURT: Are you willing to try to follow your oath or not?
MISS POLLACK: They just have an opinion that they don't want me. That's what I can see now, and I think I would be better if I went -- I wouldn't have nothing in this.
THE COURT: When you're saying, they have a thing that they don't want you, are you saying that --
MISS POLLACK: I don't know what their problem is, but that's what they are saying, now.
THE COURT: Do you wish to continue as a juror or not?
THE COURT: Are you telling me that you are unable to continue because of some personal feeling you have about the case?
THE COURT: Can you tell me why?
MISS POLLACK: No, I just can't make an opinion, ...