On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-12-1401.
The opinion of the court was delivered by: Fisher, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Parker and C.S. Fisher.
In this appeal, defendant claims the right to a new trial because a juror, upon realizing during deliberations that he knew defendant, failed to make that fact known to the trial judge and, as a result, participated in the rendering of the guilty verdict. Although the juror should have immediately brought this to the trial judge's attention, we affirm because defendant also realized during the trial that he and the juror had been acquainted in the past, and waived the right to complain by remaining silent until after the verdict.
The jury heard evidence in this matter that, at the time of the alleged offenses, nine-year old E.B. lived with her mother, stepfather and two half-brothers in a two-family home; E.B.'s grandmother, Cathy Osterman, lived in the other half of the two-family home. Defendant had been dating Osterman for more than ten years and, as a result of this long-standing relationship, E.B. viewed defendant as a grandfather-figure, and referred to him as "Pop-Pop."
Defendant often took E.B. and her siblings to the park or out to eat. The jury heard testimony that, on certain of those occasions, defendant inappropriately touched E.B. The last such touching was alleged to have occurred on July 24, 2002.
Defendant testified on his own behalf and denied any wrongdoing. At the conclusion of the trial, defendant was found guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
Defendant moved for a new trial, arguing, among other things, that he realized -- after the verdict -- that he and Osterman knew one of the jurors from their past employment at Merck Pharmaceuticals in Rahway. He claimed that the juror had engaged in misconduct by failing to come forward with this information during jury selection or thereafter. Judge Scott J. Moynihan conducted an evidentiary hearing into these circumstances, and heard testimony from the juror in question on November 21, 2003, the remaining members of the jury, Osterman, and defendant's trial attorney on February 6, 2004, and Sherry Bianco, defendant's daughter, on August 6, 2004. For the reasons thoroughly expressed in his oral decision of September 20, 2004, Judge Moynihan denied defendant's motion for a new trial.
Defendant was later sentenced. Following a merger of the two counts, Judge Moynihan imposed a seven-year term of imprisonment with an 85% period of parole ineligibility.
Defendant appealed, raising the following arguments for our consideration:
I. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL
B. In Reaching Its Conclusion That The Defendant's Motion For A New Trial Should Be Denied, The Trial Court Made Certain Credibility Findings Which Were Clearly Mistaken And Factually Unsupported By The Trial Record.
C. The Defendant Was Denied His Right To Utilize A Peremptory Challenge Against [The Juror], Justifying A New Trial On That Basis.
D. The Defendant Was Denied His Right To Have His Case Tried Before And Decided By A Completely Fair And Impartial Jury By Virtue Of The Failure Of [The Juror] To Disclose His Knowledge Of And Relationship With Cathy Osterman.
E. The Defendant Was Denied His Right To A Fair Trial As A Result Of [The Juror's] Failure To Inform The Court That He Realized He Knew The ...