On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-04-0559.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 15, 2010
Before Judges Cuff and Sapp-Peterson.
A jury found defendant guilty of third degree knowingly or purposely possessing a controlled dangerous substance (CDS) (heroin), N.J.S.A. 2C:35-10a(1) (Count One); third degree knowingly or purposely possessing with intent to dispense or distribute CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Two); third degree knowingly or purposely possessing with intent to dispense or distribute CDS within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); third degree knowingly or purposely dispensing or distributing CDS, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (Count Four); and third degree knowingly or purposely dispensing or distributing CDS within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Five). Judge Kracov merged Counts One through Four with Count Five and imposed a ten-year term of imprisonment with a five-year period of parole ineligibility, to be served concurrent to the sentence imposed on a violation of probation under Indictment No. 06-05-812. The appropriate fees, fines, penalties, and assessments were also imposed.
On appeal, defendant raises the following arguments:
THE TRIAL COURT'S FAILURES TO BEGIN VOIR DIRE ANEW FOLLOWING CONTAMINATION OF THE ARRAY AND TO EXCUSE POLICE AND GUILT-PRONE POTENTIAL JURORS FOR CAUSE CONSTITUTED ABUSES OF DISCRETION REQUIRING REVERSAL.
A) THE POSSIBLE TAINT RESULTING FROM A CORRECTIONS OFFICER VENIREMAN'S COMMENT THAT HE SAW MR. BING "ON THE INSIDE" AND THE TRIAL COURT'S FAILURE TO BEGIN VOIR DIRE ANEW DEPRIVED MR. BING OF HIS RIGHT TO A FAIR AND IMPARTIAL JURY (Partially Raised Below) (U.S. Const. VI, XIV; N.J. Const. (1947) Art. I Par. 10)
B. THE TRIAL COURT'S FAILURE TO CONDUCT PROBING VOIR DIRE OF POLICE/GUILT-PRONE JURORS, IT'S CLOSED-ENDED LECTURES AND QUESTIONING, AND IT'S REFUSAL TO EXCUSE SUCH JURORS FOR CAUSE WERE ABUSES OF DISCRETION REQUIRING REVERSAL (Partially Raised Below).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND WAS REACHED BECAUSE OF THE IMPROPER REJECTION OF APPLICABLE MITIGATING FACTORS AND THE IMPROPER ADOPTION OF AN INAPPLICABLE AGGRAVATING FACTOR.
Jury selection began on October 30, 2007. Judge Kracov instructed the array on the process of jury selection and the trial in general. He noted that defendant and the State were entitled to jurors who are impartial and agree to keep their minds open until a verdict is reached[,] [j]urors who will listen to the case, decide it on the evidence they have heard in the courtroom, will keep an open mind, and are not biased or prejudice[d] to anyone or either side.
The judge gave the potential jurors some time to fill out voir dire questionnaires. Of the questions asked, one asked whether a potential juror had any family or friends involved in law enforcement, two sought to determine whether the juror would show a preference to a police officer's testimony, and one asked whether the juror would be able to accept the principle that the indictment is not evidence of guilt. After eliminating prospective jurors with scheduling or medical concerns, the judge placed the first fourteen potential jurors in the jury box. He then engaged each potential juror in a discussion of his or her answers to the questions.
Several of the potential jurors expressed doubts they could be impartial with respect to police officers. Some noted they had family members or friends in law enforcement. Two potential jurors expressed doubt they would not view the indictment as evidence of guilt. In all cases, however, the judge attempted to rehabilitate the jurors by explaining the impartiality that was required of them. The majority of the potential jurors said that in light of the judge's instruction, they would try to remain impartial. However, even after an attempt to rehabilitate, the judge excused one juror who said that he could not remain impartial. At the end of the questioning, the judge asked each person if he or she would be a good juror and, if so, why. They all answered they would be good jurors.
On the first day of jury selection, the judge requested that juror H-M*fn1 engage in a sidebar conversation with him based on an answer she gave. She told the judge she heard "one of the other jurors tell the Sheriff's Officer that the defendant was on the inside. He was a corrections officer and knew him from the inside." H-M felt this statement affected her view of defendant and she "would feel that he's been convicted before" and thus could not be fair. The juror mentioned that the other prospective juror did not make the comment very loudly. She described it as a "low utterance."
In her response, defense counsel suggested that they "get a whole new panel and start over." However, because H-M did not know whether anyone else around her heard the comment, the judge addressed all the potential jurors and asked if "any of you folks out there or over here hear one of the jurors, who may have been a ...