On appeal from the Superior Court of New Jersey, Law Division, Essex County and on remand from the Supreme Court, Indictment No. 95-05-01936.
Before Judges Wefing, Ciancia and Parrillo.
The opinion of the court was delivered by: Ciancia, J.A.D.
As amended January 15, 2002.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This appeal is before us on remand from the Supreme Court. State v. R.D., 169 N.J. 551 (2001). Defendant was convicted of second-degree sexual assault upon his seven-year-old granddaughter, N.J.S.A. 2C:14-2b, and related offenses. Initially, we reversed defendant's judgment of conviction finding plain error in the trial court's failure to interrogate other jurors as to possible taint when it excused one juror who recollected after the start of trial that he had attended the victim's mother in the hospital as a nurse. That juror heard her talk about family relationships in such a way as to influence his view of the case. The Supreme Court reversed, holding that the trial court had not abused its discretion in determining that a voir dire of the remaining jurors was unnecessary. The matter was remanded to this court for consideration of the remaining issues defendant raised on direct appeal that had not been addressed in our initial opinion. Those issues are:
DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT IMPROPERLY PRECLUDED DEFENSE COUNSEL FROM INTERVIEWING A WITNESS/JUROR.
DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE TRIAL COURT IMPROPERLY ALLOWED THE CHILD, F.D., TO TESTIFY OUTSIDE THE PRESENCE OF THE DEFENDANT BY CLOSED CIRCUIT TELEVISION.
DEFENDANT'S SENTENCE IS EXCESSIVE.
We find merit in the contention that defense counsel was improperly precluded from interviewing the excused juror, but on the present facts reversal of defendant's judgment of conviction is not warranted. Instead, we find defendant is entitled to an immediate evidential hearing upon an application for post- conviction relief.
The circumstances surrounding excusal of the juror are as follows. The victim's mother suffered from sickle cell anemia and was hospitalized on more than one occasion. At the conclusion of testimony on the first day of trial, which included testimony from the victim's mother, juror number two approached the bench at sidebar and told the court that he belatedly realized he knew the victim's mother. The following colloquy took place in the presence of counsel:
THE JUROR: In the beginning of the trial when you read all the names, I didn't recognize anybody. I know [the victim's mother] because I took care of her. I'm a nurse at the ...