On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Hudson County, Indictment No. 05-01-30.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, C.S. Fisher and Kestin.
Defendant, Marcus Haggan, appeals from his conviction, following a jury trial, of five third-degree crimes: possession of heroin, a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); possession of heroin with intent to distribute, N.J.S.A. 2C:35-5a(1), -5b(3); two charges of possession of heroin in a school zone with intent to distribute, N.J.S.A. 2C:35-7; and distribution of heroin, N.J.S.A. 2C:35-5a(1), -5b(3). Defendant had also been charged with two second-degree drug crimes, which were dismissed by the State at trial.
Following mergers among the convictions and a grant of the State's motion for an extended term pursuant to N.J.S.A. 2C:43-6(f), the trial court sentenced defendant to two concurrent ten-year terms of imprisonment with five years of parole ineligibility. Fines, penalties and fees were ordered along with a twelve-month suspension of driving privileges and a requirement that defendant provide a DNA sample.
On appeal, defendant raises the following issues:
POINT I IT WAS JUDICIAL ERROR TO FAIL TO DISMISS THE FOREMAN AND NOT SEAT THE ALTERNATE JUROR.
POINT II THE SENTENCE IMPOSED BY THE TRIAL COURT WAS EXCESSIVE AND ABUSED ITS DISCRETION.
POINT III THE CASE SHOULD BE REMANDED FOR RESENTENCING AS THE RECORD BELOW DOES NOT CONTAIN FINDINGS OF FACT.
The jury began its deliberations at about noon on the third day of trial. Sometime in the afternoon of that day, the courthouse was evacuated because of an electrical problem. The jury was excused for the day and told to return the following morning. As the next day began, before the jurors were to resume their deliberations, the prosecutor asked to be heard at sidebar. The verbatim record discloses that an "inaudible discussion at sidebar" ensued. Following that discussion, the trial judge excused the jury to the jury room with an instruction not to recommence its deliberations, but told the jury foreperson to remain in the courtroom. The following colloquy occurred:
THE COURT: Mr. Foreman, the attorneys have advised me that yesterday after the jury left, that you had a conversation with the defendant, is that correct?
JURY FOREPERSON: There was no conversation, it was more of an acknowledgement. He came by and I nodded my head but I didn't speak to him or have a conversation.
THE COURT: Did you say anything to him?
JURY FOREPERSON: Just like hello was pretty much it.
THE COURT: Okay. You said nothing else[?]
THE COURT: And where did this take place?
JURY FOREPERSON: Outside.
THE COURT: Right in here?
JURY FOREPERSON: No, out in front.
THE COURT: Oh[,] out in front.
THE COURT: Okay. Still do not continue your deliberations. Could you just go back inside the jury room and wait? Thank you. And ...