On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Muir, Jr., and Stern. The opinion of the court was delivered by Stern, J.A.D.
The novel issue raised on this appeal is whether a criminal defendant, deprived of the proper number of peremptory challenges, is entitled to a new trial. We conclude that there is no per se rule warranting reversal and affirm the conviction in these circumstances where defendant exercised less than the peremptory challenges granted to him by the trial Judge and where the record does not indicate the error in any way affected his decisions during the jury selection process. We also reject defendant's contention that he was deprived of a fair trial in the absence of disclosure of an "informer."
Defendant was indicted for possession of cocaine, N.J.S.A. 2C:35-10a(1) (count one); possession of five ounces or more of cocaine with intent to distribute, N.J.S.A. 2C:35-5b(1) (count two); possession of the cocaine with intent to distribute within 1,000 feet
of a school, N.J.S.A. 2C:35-7 (count three); aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (count four), and resisting arrest, N.J.S.A. 2C:29-2 (count five). After his motions to suppress and to compel disclosure of the identity of a confidential informant were denied, defendant was tried to a jury and convicted on the drug possession charges, but acquitted on the fourth and fifth counts. The trial Judge merged count one into count two and sentenced defendant to fifteen years in the custody of the Commissioner of Corrections, with five years before parole eligibility on count two. He was also ordered to pay a $3,000 D.E.D.R. penalty, a $50 lab fee, and $30 V.C.C.B. penalty on that count, and his driver's license was suspended for six months. On count three, defendant was sentenced to four years in the custody of the Commissioner of Corrections, with the mandatory three year period of parole ineligibility, concurrent with the sentence imposed on count two. A separate $1,000 D.E.D.R. penalty, $50 laboratory fee and $30 V.C.C.B. penalty were also imposed on count three. A separate sentence was imposed for another drug offense to which defendant pled guilty after trial.
On this appeal defendant argues:
POINT I DEFENDANT WAS DENIED A FAIR TRIAL BECAUSE THE COURT FAILED TO ORDER DISCLOSURE OF THE NAME AND ADDRESS OF THE INFORMANT, OR TO MAKE AN ADEQUATE RECORD SUPPORTING ITS DECISION NOT TO ORDER DISCLOSURE OF THE INFORMANT'S IDENTITY.
POINT II THE COURT BELOW FAILED TO PROVIDE THE PROPER NUMBER OF PEREMPTORY CHALLENGES.
[At the request of the Appellate Division the court's statement of facts and Discussion of Point I are omitted from publication.]
Defendant also contends that he is entitled to the reversal of his conviction because the trial Judge, contrary to defendant's position, limited his peremptory challenges to one-half of the number authorized in R. 1:8-3(d). Defendant therefore claims, without citation, that he was denied his federal and state ...