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State v. Anaya

November 19, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
HECTOR ANAYA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment Nos. 07-04-00264 and 07-04-00267.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: November 5, 2009

Before Judges Stern and Graves.

Defendant was convicted at a jury trial of possession of a controlled dangerous substance (cocaine and marijuana) with intent to distribute within a school zone and other related possessory offenses which were merged therein. He was given concurrent extended seven-year sentences for the cocaine and marijuana violations with a three-year parole ineligibility term on each violation. Monetary fees and penalties were imposed and driving privileges were suspended on each offense. After a guilty plea was entered on a separate indictment, defendant received a negotiated eighteen-month concurrent sentence for possession with intent to distribute marijuana. Defendant argues, with relation to the tried offense, that his equal protection rights were "violated by the prosecutor's use of peremptory challenges to strike African-American and Hispanic jurors from the panel for reasons that were not race- neutral," "the jury instructions violated his rights to due process of law and a fair trial," and his extended term sentence is excessive, and requires a reduction of the sentence or a remand for resentencing.

It is undisputed that the State exercised a peremptory challenge with respect to minority jurors Mitchell, Cooper, and White. Mitchell had been unsuccessfully challenged for cause by the prosecutor because his view of sentencing practices. There was a question as to whether juror White was Hispanic. The State contends that defendant never made an application addressing the exercise of the peremptories, that "at least three of the eight jurors the prosecutor excused were white," so that it cannot be said "that the prosecutor used a disproportionate number of peremptory challenges against members of a cognizable group."

We hereafter quote the entire colloquy with respect to the State's exercise of peremptory challenges. We do so to demonstrate the state of the record and to emphasize why it is hard to evaluate or understand the position the parties actually took during the jury selection process.

MR. SANZONE [defense counsel]: Judge, as far as my last objection, you know I might be willing to (indiscernible) there was [sic] three African males that were taken off, not including the last individual. To me he looked like he was part African American. He looked like he was--

THE COURT: (Indiscernible) White.

MR. SANZONE: I believe he was -- his skin was -- his pigment was very light. It appeared to me that his (indiscernible) the way he looked. He looked like he was African American.

THE COURT: I didn't get that impression at all. And usually I watch out for that and make a notation.

MR. SANZONE: (Indiscernible).

THE COURT: But he's not African American.

MR. SANZONE: He's not. (Indiscernible).

THE COURT: I understand. It doesn't matter for purposes of this particular application. I just want to make the clear for the record.

MR. SANZONE: (Indiscernible).

THE COURT: Are you making a (indiscernible).

MR. SANZONE: (Indiscernible).

THE COURT: I'm sorry. What's the exact nature of your application?

MR. SANZONE: There was [sic] three and I believe four minorities that were taken off the jury.

THE COURT: By the State or?

MR. SANZONE: There was [sic] three that definitely were African American, not including Mr. White.

THE COURT: Which ones. You say there are three not ...


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