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State v. Alvarado

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 31, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RAMON ALVARADO, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Salem County, 05-05-0136.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 22, 2007

Before Judges Coburn and R.B. Coleman.

Defendant, Ramon Alvarado, was tried before a jury and found guilty on Indictment 04-12-0443, which charged third- degree possession of cocaine. Pursuant to a plea agreement with the State, he later pled guilty under other charging documents to bail jumping, false reporting, and impersonating a police officer. At sentencing, defendant received an aggregate sentence, within the terms of the plea arrangement, of imprisonment for five years with two years of parole ineligibility. Defendant remarks in a footnote that the transcript erroneously indicates consecutive sentences, while the judgment, as the State impliedly concedes, properly imposes concurrent sentences in accordance with the plea agreement. In light of the State's implied concession and the correctness of the judgment, we reject defendant's suggestion that resentencing is needed.

On appeal, defendant offers the following arguments:

POINT I

THE TRIAL JUDGE ERRED IN FAILING TO HOLD HEARINGS ON THE RECORD TO DETERMINE IF JUROR NUMBER 10 WAS, IN FACT, INCAPABLE OF CONTINUING AS A JUROR AND ALSO IN FAILING TO VOIR DIRE THE REST OF THE JURY TO ASCERTAIN WHETHER JUROR'S NUMBER 10 RELATIONSHIP WITH DEFENDANT TAINTED THE SITTING JURORS. (Not Raised Below.)

POINT II

AS THE GUILTY PLEAS WERE ENTERED BECAUSE DEFENDANT WAS ALREADY CONVICTED OF A THIRD DEGREE OFFENSE AND THE OUTSTANDING CASES WERE PACKAGED WITH THE TRIAL CONVICTION, SHOULD THIS COURT REVERSE THE CONVICTION, THE GUILTY PLEAS MUST ALSO BE VACATED. (Not Raised Below.)

After carefully considering the record and briefs, we are satisfied that defendant's POINT I is without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), which, of course, renders his POINT II moot. We, however, note the following as to POINT I.

Defendant was tried in abstentia. After the State rested and the judge denied defendant's motion for acquittal, a woman appeared who represented that she was the grandmother of Juror 10. She claimed that her grandson was mildly retarded and was unlikely to understand the proceedings. She then mentioned that defendant "is his sister's uncle." Although she added that the juror knew defendant, during the voir dire the juror had said he did not know anyone involved in the case. The parties agreed that Juror 10 should be excused after summations, which was done. Neither side asked that Juror 10 or the other jurors be subjected to questioning to determine if Juror 10 had made any disclosures that might have prejudiced the defendant.

Although there may be circumstances when failure to interrogate the remaining jurors is plain error, see e.g., State v. Wormley, 305 N.J. Super. 57, 68-70 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998), which is the main case on which defendant relies, that is so only when it is highly likely that the excused juror has conveyed inappropriate knowledge to the other jurors. Id. at 70. That is hardly the case here since we have no indication that the juror connected defendant's name with his uncle or knew anything about his uncle's involvement with drugs.

Affirmed.

20070531

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