Before Judges Pressler, Ciancia and Arnold.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
Following a jury trial, defendant Pablo Cruz, Jr. was found guilty of second degree possession of cocaine with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(2) (count one) and two counts of third degree possession of cocaine, N.J.S.A. 2C:35-10a(1)(counts two and three). On count one he was sentenced to five years imprisonment and on count three he was sentenced to a concurrent three-year term. The sentencing judge merged count two into count one. Appropriate fees and penalties were imposed.
The sole issue on appeal concerns the propriety of removing a juror during the course of deliberations and replacing her with an alternate. On the facts presented we find that the juror's removal was unwarranted and constituted reversible error.
For present purposes we need not recount all the evidence elicited at trial. Suffice it to say that the State's case, if credited, showed that the State Police pulled over a vehicle driven by defendant and occupied by three other persons, because the car had been tailgating. Defendant did not have a valid driver's license nor did any of the passengers. Conversation with the vehicle's occupants aroused the trooper's suspicions and defendant was asked if he would consent to a search of the car. Defendant agreed and signed the appropriate form. The search revealed a shopping bag which contained a pair of jeans and two bags of a substance later determined to be cocaine. Defendant and his companions were arrested and searched. The search of defendant produced additional cocaine. One of the passengers possessed approximately a hundred zip-lock bags and some marijuana.
The initial voir dire of prospective jurors was uneventful, including that of juror number two, who was later to be removed from the panel during deliberations. On the morning of the second day of trial juror number two asked to speak to the judge. Outside the presence of the other jurors she told the judge and counsel, apparently without elaboration *fn1 that she had been stopped by the police in the past and might be biased against the police. When asked if her experience had "anything to do with this case," she responded that it did not. The judge said he would not excuse the juror and she returned to the room where the other jurors were awaiting the resumption of trial. The prosecutor then requested that juror number two be made an alternate. There was no request that she be dismissed. Defense counsel took the position that the case being tried did not involve a challenge to the actions of the police in stopping defendant's vehicle and conducting searches. Therefore, the experience of juror number two really had no relationship to the case she was hearing. The trial judge agreed that the case being tried turned on defendant's knowledge and possession of drugs, not on the propriety of any police activity. He accordingly denied the prosecutor's request to designate juror number two as an alternate.
The trial continued and juror number two made no further requests. As it turned out she was not selected as an alternate. After jury deliberations had been underway for about thirty minutes, the prosecutor made application to the court for a further voir dire of juror number two because "we didn't get a full inquiry." This request was also based upon the assertion that the juror had smiled at the defendant before the start of deliberations. In response to this request the trial judge stayed deliberations and called juror number two into chambers where the following colloquy ensued:
THE COURT: All right, I want to make some further inquiry as to what you brought to our attention this morning, that you felt that you biased and unable to stay on this case. Tell me more about that.
JUROR: Well, it was just a minor traffic violation. One of my headlights was out -
THE COURT: No, I don't want to know about the incident so much as I want to know about your ability to function on the jury.
JUROR: To function on the jury? Because I just see a lot of doubt in the case, when I first listened to it.
THE COURT: Wait a minute. See, it's very difficult what we're talking about now. Don't want you to disclose anything that's been going on for the least half hour with deliberations ...