On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-04-0718.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman,*fn1 Lisa and Grall.
Defendant Alex Banks appeals from a final judgment of conviction and sentence. The verdict was returned by a jury that was reconstituted after the original panel advised the court that it could not reach a unanimous verdict. Replacement of a problem juror with an alternate over defendant's objection and request for a mistrial "was not a permissible option because the jury's deliberations had proceeded so far towards completion that a reconstituted jury would not have been capable of considering defendant's guilt or innocence anew . . . ." State v. Jenkins, 182 N.J. 112, 116 (2004). Accordingly, we reverse. The reconstituted jury found defendant guilty of third-degree possession of heroin, a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count one); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (count two); second-degree possession of heroin with intent to distribute in a public housing zone, N.J.S.A. 2C:35-7.1 (count three); two counts of third-degree distribution of heroin, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (counts four and six), and two counts of second-degree distribution of heroin in a public housing zone, N.J.S.A. 2C:35-7.1 (counts five and seven). The trial court found defendant guilty of the disorderly persons offense of possession of fifty grams or less of marijuana, N.J.S.A. 2C:35-10a(4).
The court denied defendant's motion for a new trial and, based on defendant's prior conviction for distribution of a controlled dangerous substance, granted the State's motion to impose a mandatory extended term pursuant to N.J.S.A. 2C:43-6f. The court merged counts one, two and three of the indictment into count four and count six into count seven. Defendant was sentenced to an aggregate term of ten years, five years to be served without possibility of parole. The court also required defendant to provide a DNA sample, revoked his driving privileges and imposed DEDR penalties, lab fees, VCCB assessments and a LEOTEF penalty.*fn2
The following evidence was presented at trial. At noon on March 8, 2002, Sergeant Samuel Dickson of the Atlantic City Police Department conducted a surveillance of a public housing facility, which was an area known for illegal drug trade. He positioned himself in a nearby high-rise building and used high-powered binoculars to view the courtyard of the complex.
Officers Hersch, Dungan and O'Hala were available to make an arrest at his direction.
Dickson noticed six or seven people, including defendant, gathered in the courtyard. While Dickson watched, Christopher Fedor approached the group and spoke with defendant. Defendant and Fedor walked away from the others and into a breezeway. Dickson saw an exchange. He contacted Officer Hersch and directed him to arrest Fedor. As Hersch approached Fedor, he saw him throw two small objects onto the ground. Hersch retrieved two glassine bags that were stamped "White House" and held heroin.
Dickson stayed at his post. He saw Pete Gonzalez enter the courtyard. Defendant directed Gonzalez to the breezeway and followed him. Gonzalez took money from his pocket. Although Dickson did not see a transaction, he saw defendant and Gonzalez standing together face to face. Dickson directed Officer Dungan to arrest Gonzalez. As Dungan approached, Gonzalez discarded two baggies that were stamped "White House" and contained heroin.
Dickson then reached Officer O'Hala, who arrested defendant and searched him. O'Hala found a bag of marijuana and cash in the amount of $281. Although O'Hala did not find any heroin at that time, he later found a "small glassine packet," stamped
"White House," in the rear seat of the patrol car he used to drive defendant to the police station.
Jury deliberations commenced at 11:30 a.m. on October 5, 2005. The jurors were given a one-hour break for lunch at 12:30 p.m. Shortly after deliberations resumed, the jurors requested and received additional instruction on the legal definitions of possession and constructive possession and asked whether the State was required to establish defendant's possession of all five bags of heroin to return a verdict of guilty on count one.
The jurors were given additional instruction and resumed deliberations at 2:43 p.m. Shortly after 3:00 p.m., they sent the court a note advising that they could not reach a "unanimous agreement/verdict." At 3:43 p.m., the court gave the jurors entirely proper instructions ...