Before Judges D'Annunzio, A.a. Rodr¡guez and Coburn.
The opinion of the court was delivered by: Coburn, J.A.D.
 Submitted April 22, 1998
On appeal from Superior Court of New Jersey, Law Division, Cumberland County.
The defendant was found guilty by a jury of possession of heroin, a violation of N.J.S.A. 2C:35-10a(1), and was sentenced to imprisonment for five years. He appeals, contending that his rights were violated during voir dire when the trial Judge interviewed prospective jurors at sidebar while his attorney and the prosecutor remained at counsel table. Although he also seeks reversal on other grounds, it is unnecessary for us to consider them because we are satisfied that the irregular voir dire procedure requires a new trial. The point is raised for the first time on appeal. Nonetheless, it is a substantial one, deserving of recognition as plain error. R. 2:10-2. We are convinced that the defendant was deprived of his right to the effective assistance of counsel at a critical stage of the trial, as guaranteed by the Sixth Amendment of the United States Constitution and by article I, paragraph 10 of the New Jersey Constitution. On the afternoon of November 22, 1995, three Vineland police officers were on patrol when they observed the defendant on the street in front of Benny's Pool Hall at 216 Southwest Boulevard. The area was known to them as one in which the sale of heroin was prevalent. After confirming the existence of an arrest warrant for defendant, the officers approached him and advised that he was under arrest. One of them, Detective Collins, placed handcuffs on the defendant and searched him for weapons and contraband. Three inches below the defendant's waistband Collins felt a small object which he concluded was probably a packet of heroin. He told the defendant that he had located heroin in his pants and that he would require the defendant to hand the packet to him when they reached the police station. According to Collins, the defendant complied. The defendant claimed that Collins said nothing about finding a packet of heroin at the scene. He further testified that after they arrived at the police station it was Collins who produced the heroin, which had never been on defendant's person. Defendant admitted that he was a user of heroin and had come to the area to make a purchase. Although he had no money at the time, he was intending to buy the heroin on credit.
At the commencement of jury selection, before fourteen jurors were placed in the jury box, the Judge advised the prospective jurors that if there were matters "that you are not comfortable discussing in front of the entire group, you may ask to come up close to the bench and talk to me." During voir dire, the Judge conducted recorded sidebar interviews with eight prospective jurors while the defense attorney and the prosecutor remained at counsel table, in sight but out of hearing range. These interviews supplemented in-box interviews of those prospective jurors. Following each interview, the Judge either excused the juror for cause or directed the juror to return to the jury box. Then, the judge invited counsel to sidebar, where she related, with varying degrees of accuracy, the information gleaned from the interview and her decision with respect to whether the juror was excused for cause or tentatively seated in the box. Neither counsel objected to the procedure.
The selection of petit jurors is governed, in part, by statute. N.J.S.A. 2B:23-10 provides:
a. In the discretion of the court, parties to any trial may question any person summoned as a juror after the name is drawn and before the swearing, and without the interposition of any challenge, to determine whether or not to interpose a peremptory challenge or a challenge for cause. Such examination shall be permitted in order to disclose whether or not the juror is qualified, impartial and without interest in the result of the action. The questioning shall be conducted in open court under the trial Judge's supervision.
The Rules of Court also provide guidance on the subject. R. 1:8-3(a) provides, in pertinent part, the following:
(a) Examination of Jurors. For the purpose of determining whether a challenge should be interposed, the court shall interrogate the prospective jurors in the box after the required number are drawn without placing them under oath. The parties or their attorneys may supplement the court's interrogation in its discretion.
Another relevant Court Rule states that the "defendant shall be present at every stage of the trial, including the impaneling of the jury . . . ." R. 3:16(b). And in State v. McCombs, 81 N.J. 373 (1979), the Court held that the voir dire examination of prospective jurors is a critical stage during which a criminal defendant is entitled to representation by counsel.
The only exception recognized in this state to the rule that interrogation of a juror must occur within the juror box is set forth in State v. Kamienski, 254 N.J. Super. 75 (App. Div.), certif. denied, 130 N.J. 18 (1992), where we held that matters which might result in comments by the prospective juror which could have an adverse effect on the fairness of other prospective jurors (and, by implication, matters involving disclosure of sensitive information which the juror might wish to convey outside the hearing of the other jurors), should be discussed at sidebar in the presence of "the Judge and counsel privately on the record." Id. at 109 (emphasis added).
In Wright v. Bernstein, 23 N.J. 284 (1957), the Court considered an incident involving a juror whose possible prejudice came to light during the trial, resulting in a motion for a mistrial. The trial court denied the motion and permitted a verdict to be returned. Thereafter, the trial court interviewed the juror for the purpose of learning whether the trial had been compromised. The trial court let the verdict stand. The interview was conducted in chambers in the absence of counsel. The Court reversed the judgment on the ground that the motion for a mistrial should have been granted since the information revealed during trial demonstrated that the juror had provided deceptive and ...