November 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 including Mr. White.
MR. SANZONE: Mr. Banks.
THE COURT: Which Jurors, Mr. Sanzone?
MR. SANZONE: Mr. Banks, Mr. Cooper, Mr. Mitchell. And to me I get a quarter White, like White skin. And that was four of them --
THE COURT: Mr. Mitchell was --
MR. MCMAHON [the prosecutor]: Judge, I'm sorry. Can I just grab my -- thank you.
MR. SANZONE: I wasn't thinking (indiscernible).
THE COURT: Mr. Cooper was excused. Mr. Mitchell was excluded by the State. (Indiscernible).
MR. MCMAHON: (Indiscernible).
THE COURT: I excused him.
MR. SANZONE: Right.
MR. MCMAHON: In addition, Mr. Banks knew Officer Lovitt, who is a possible witness in this case.
THE COURT: (Indiscernible) was an Elizabeth cop.
MR. MCMAHON: Yes.
THE COURT: That's why I excused him because I didn't think he could be fair. (Indiscernible) that's why I excused him. And Mr. White. I could swear (indiscernible).
MR. MCMAHON: Judge, for the record the State will concur there was no appearance whatsoever that Mr. White is African American nor in this case, obviously, is the defendant. Furthermore, if the Judge can --if the State can put on the record (indiscernible).
THE COURT: If you have anything to say (indiscernible) challenge is entertained. One that the person is excluded are further cognizant and I will give you that two of the Jurors they are African American. The second problem is that there's a substantial likelihood that the peremptory challenge is exercised by the State or exercised to exclude those minorities based on assumptions about the bias rather than on a specific bias or personal bias situation.
So as to the defenses [sic] initial burden what proofs do you have?
MR. SANZONE: (No verbal response).
THE COURT: And again, Mr. Sanzone, you have to consider (indiscernible) where the Prosecutor has struck most for all members and then identified (indiscernible) to the Prosecutor used a disproportionate number of his peremptories against that person, agreed that the Prosecutor failed to ask the proposed questions to the challenged Jurors or that the race of a challenged Jurors [sic] as (indiscernible) says the community as a whole (indiscernible) that the challenged jurors unlike the victims are the same race as the defendant. So those are the facts that should be considered.
MR. MCMAHON: Your Honor, just for the record.
THE COURT: Hold on. I just asked Mr. Sanzone a question.
MR. MCMAHON: I was just wondering if this the type of -- if he's launching a CAMPBELL (phonetic) application or if this is just an inquiry?
MR. SANZONE: I'm not sure.
THE COURT: All right.
MR. SANZONE: (Indiscernible) Hispanic as Mr. McMahon just pointed out.
THE COURT: I'll give you (indiscernible) here.
MR. SANZONE: That would be three out of six.
MR. MCMAHON: That -- if you're assuming Mr. White is a minority --
MR. SANZONE: No, no. The two -- there are definitely two African Americans.
MR. MCMAHON: That's correct.
MR. SANZONE: (Indiscernible) Hispanic.
MR. MCMAHON: That's if you assume that Mr. White -- if Mr. White is taken as Hispanic and not Caucasian. That's three minority exclusions and three White females.
THE COURT: Which one of these people, Mr. Sanzone, as far as being Latino?
MR. SANZONE: Josh just mentioned it. I don't remember his name.
THE COURT: Where was he sitting?
MR. SANZONE: I think it was a female, Judge, actually.
MR. MCMAHON: Judge, it was actually Juror No. 9. That's the only Latino I've mentioned. Juror No. 9, Mr. White, Ricardo White. That's the only one (indiscernible) close to Caucasian.
THE COURT: Why beat that horse?
MR. MCMAHON: No. That's what we --
MR. SANZONE: It wasn't a Hispanic Juror (indiscernible). Judge, my mistake because I wasn't marking them as race.
THE COURT: Galbrial was excused by you. Ms. Martino was excused by me because of her language problems. Mr. Natches, although it sounds Spanish he certainly didn't look Spanish.
MR. SANZONE: No, he wasn't.
THE COURT: Besides Ms. Devlin still in the box, I don't see any other female or Latino Juror. What would you like me to do? How do you want to handle this? What application?
MR. SANZONE: I have two more challenges left. I would ask the Court to reconsider the challenge to Juror No. 8 and No. 7. So those members could be excused.
THE COURT: No. (Indiscernible). All right.
MR. SANZONE: Okay. Thanks, Judge.
MR. MCMAHON: Thank you, Your Honor. (Discussion at Sidebar concluded)
THE COURT: I hadn't foreclosed that possibility.
We remand for plenary consideration of defendant's claim that the judge improperly failed to require the prosecutor to provide race and ethnicity neutral reasons for the exclusion of the three potential jurors. As the matter is on direct appeal, we believe the matter warrants further development and consideration under the new test clarified in State v. Osorio, 199 N.J. 486, 501-06 (2009). A record should be developed as to the positions of the parties, and the trial judge should decide whatever application is presented to him on the remand.*fn1
We reject defendant's contention that the judge's reference, in the jury charge, to facts embodied in questions as not being evidence, and the need for testimony to constitute evidence, constituted plain error. Defendant suggests it put a burden on him and violated his rights to due process and a fair trial. R. 2:11-3(e)(2).
We remand for resentencing. First, when defendant argued that imprisonment would be a hardship for his pregnant wife and three children, he stated his wife "would like to say something if the Court is so inclined to hear from her." The judge responded:
Well, the Court hears from victims in cases, but not from the defendant's family. If you like to make a representation on her behalf I would, certainly, be glad to hear it.
Counsel repeated that "she has indicated to me that she is very concerned about her husband going to State Prison, that it would be an extreme hardship on her and the children." As long as this matter must be remanded, defendant's wife should be permitted to speak at resentencing unless a new trial is ordered.
Count four of the indictment tried to the jury provides:
The Grand Jurors of the State of New Jersey, for the County of Union, upon their oaths present that HECTOR ANAYA, on January 6, 2007, in the City of Elizabeth, in the County of Union, aforesaid, and within the jurisdiction of this Court, did unlawfully and knowingly or purposely possess with intent to distribute Cocaine, Schedule II, and/or Marijuana, on or within 1000 feet of property owned by or leased to an elementary or secondary school or school board and which is used for school purposes; contrary to the provisions of N.J.S.A. 2C:35-7, and against the peace of this State, the Government and dignity of the same.
Although there is no merger of convictions for simultaneous possession with intent to distribute within a school zone,*fn2 see State v. Strecko, 244 N.J. Super. 463, 465 (App. Div. 1990); State v. Jordan, 235 N.J. Super. 517, 521 (App. Div.), certif. denied, 118 N.J. 224 (1989), the parties agree that that principle does not apply when the two offenses are embodied in the same count of the same indictment.
The matter is remanded for reconsideration of the sentence which shall be re-imposed if a new trial is not granted in light of the exercise of peremptory challenges. Jurisdiction is not retained.