The opinion of the court was delivered by: Verniero, J.
ON APPEAL FROM ON CERTIFICATION TO Appellate Division, Superior Court
In this criminal appeal, we must determine whether defendant's treatment at the Gloucester County Jail warrants reversal of his conviction. While in custody at the jail, defendant was denied basic necessities such as food, soap, water, a clean mattress and blanket, and a comb. After testifying before the jury in a visibly disheveled state, defendant was convicted of certain drug offenses and sentenced to sixteen years in prison with six years and four months of parole ineligibility. The Appellate Division upheld the conviction and sentence. We now reverse and hold that defendant is entitled to a new trial.
The facts may be briefly stated. Defendant Angel Maisonet and co-defendant, Adolfo Marquez, were arrested for drug-related offenses following a motor vehicle stop, the details of which are not before us for review. Defendant and co-defendant were present in defendant's vehicle at the time the drugs were seized. In a single indictment, the Gloucester County Grand Jury charged both men with possession of cocaine pursuant to N.J.S.A. 2C:35- 10a(1) and possession of cocaine with the intent to distribute pursuant to N.J.S.A. 2C:35-5a(1) and 35-5b(2).
Defendant and Marquez were tried together at a trial that lasted one week. During the course of the trial, defendant was housed in the Gloucester County Jail; Marquez was free on bail. On at least three days of the trial, defendant appeared dirty and unkempt. In contrast, the record indicates nothing untoward about Marquez's appearance. Each man testified, essentially accusing the other of owning the drugs in question. Credibility was thus a critical issue for the jury to resolve.
On the first day of the trial, the trial court expressed its concern over the disheveled appearance of defendant:
The court: I have to ask a wild and crazy question, folks. Directed to the sheriffs. Do they sell combs in the jail?
Sheriff's officer: They don't sell combs. They have a care package, which is a bar of soap, a comb, and something else. And there is a price to it, but I'm not sure what it is.
The court: Well, I want it worked out . . . before tomorrow morning so [defendant] doesn't have the difficulty of coming to court without his hair combed.
Defendant: I don't have nothing out there.
Co-defendant's counsel: When they come in from State Prison they don't have anything.
Defendant: We don't have running water in the cell they got me.
The court [to defendant's counsel]: [Y]ou may want to have a discussion with the Sheriff's Officer. A bar of soap, a combing, I think . . . that should be taken care of. And I want to make it very clear to the sheriffs through the Sheriff's Office, if [defendant] is entitled to basic amenities, I expect that that will be accomplished. Just sending a message. That's just a matter of humanity and fairness and dignity. Everyone is entitled to their integrity and fairness.
The proceedings for that day took place despite defendant's appearance.
By the afternoon of the second day, the situation had not improved. Defendant's counsel informed the trial court after the lunch break that the Sheriff's officers had not provided defendant with any food for lunch. The trial court then ordered one of the officers to deliver food to defendant.
Still without a shower, defendant testified before the jury on the third day. Immediately following that testimony, defendant's counsel informed the court outside of the jury's presence:
Perhaps this would be an appropriate time to place everything on the record. Judge, I had indicated to the court in chambers that [defendant] is a state prisoner, and he's been given really no -- nothing from this county jail . . . . [A]s we stand here today, Judge, [defendant] is on his fourth day without a shower. He has yet to have been provided soap, he has yet to have been provided toothpaste. He wasn't provided a meal -- lunch, yesterday . . . he's advised that he's been sleeping with a blanket that has -- is covered with ants.
Judge, in an effort to try to resolve this situation, I went to the store yesterday, out of my pocket, purchased [defendant] soap and toothpaste. I brought it up here to the jail . . . [and] I was advised by the sheriff in charge there that absolutely under no circumstances was I permitted to give [them to defendant] or leave [them] for [defendant].
[Defendant's] here Judge . . . [h]e hasn't showered. And what's most concerning, Judge, is that we have a jury of fourteen people sitting here. We have jurors' seats . . . five or six feet away from where [defendant] was just on the stand. No offense to [defendant], but anyone that goes four days without a shower doesn't have the best body odor.
And it's a concern because the jurors are looking at these people. Credibility could not be any more important in this case. The jury is looking at him and saying, not only looking at him but smelling him, and it's going to ...