On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-08-0662.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
APPROVED FOR PUBLICATION APPELLATE DIVISION
Before Judges Sapp-Peterson, Haas and Happas.
The opinion of the court was delivered by HAAS, J.S.C. (temporarily assigned).
In this appeal, we address the issue of whether the prosecutor's use of a peremptory challenge to excuse the only qualified African-American person in the jury panel was sufficient to require the prosecutor to provide a non-discriminatory explanation for the exercise of the challenge. After reviewing the record in light of the contentions advanced on appeal, we hold that because there was only one qualified member of the cognizable group in the jury panel; the defendant was also a member of that same group; the prosecutor failed to ask the juror any follow-up questions; and, other than her race, the juror was as heterogeneous as the community as a whole, the trial judge should have required the prosecutor to explain his non-discriminatory reason for the challenge.
The State developed the following proofs at trial. In May and June 2009, Detective Tyler Parker of the Cape May Prosecutor's Office was assigned to conduct an undercover investigation of illegal drug sales in Wildwood, New Jersey. On May 1, Detective Parker met with a confidential informant, who arranged a meeting between the detective and an individual later identified as defendant. Detective Parker drove an unmarked truck to the specified location, parked, and waited with the informant. Defendant approached the truck and got in.
Detective Parker then began driving. As he drove, Detective Parker testified he and defendant "engaged in a discussion over the purchase of CDS" and he agreed to pay defendant $100 for some crack cocaine. The detective then stopped the truck and defendant got out and walked away.
Detective Kevin McLaughlin was watching the transaction from a surveillance location. After defendant left the truck, the detective followed him on foot and saw him enter the door to the second-floor apartment of an apartment building.
On May 4, 2009, Detective Lakeisha Davis administered a photo array to Detective Parker. He identified defendant as the individual who sold him the cocaine.
Detective Parker conducted three more undercover purchases of cocaine from defendant. These purchases occurred on May 14, May 29, and June 12, 2009. Each occurred in the same manner, with Detective Parker picking up defendant, purchasing the cocaine from him, and dropping defendant off again. All four transactions occurred within 1,000 feet of school property or within 500 feet of public property.
On June 26, 2009, the police obtained and executed a search warrant for the second-floor apartment. Defendant was there, along with Nakeema Brown, who rented the apartment, and defendant's brother, Michael. The police recovered a bag of cocaine from defendant's pocket, as well as a larger bag of cocaine from a trash can. Defendant was then arrested.
Brown testified on defendant's behalf. She stated defendant was her "good friend," but he did not live with her. She believed the cocaine found in her apartment may have belonged to a former boyfriend.
Tried before a jury on a thirteen-count indictment, defendant was convicted of four counts of third-degree distribution of cocaine, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(3) (counts one, two, three and four); three counts of third-degree distribution of cocaine within 1,000 feet of school property, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-5a(1) (counts five, six, and seven); and four counts of second-degree distribution of cocaine within 500 feet of public property, N.J.S.A. 2C:35-7.1 and N.J.S.A. 2C:35-5a(1) (counts eight, nine, ten, and eleven). The jury also convicted defendant of third-degree possession of cocaine, ...