NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 19, 2013
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-05-0812.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
Before Judges Alvarez, Waugh and Leone.
Tried by a jury over several days, defendant Tifani K. Young was convicted of all counts of indictment no. 07-05-0812: third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one); second-degree possession of a weapon while committing a controlled dangerous substance (CDS) crime, N.J.S.A. 2C:39-4.1(a) (count two); second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count three); third-degree possession of CDS (cocaine) with intent to distribute on or within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four); third-degree possession with intent to distribute CDS (cocaine), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count five); and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count six).
On March 27, 2009, the trial judge sentenced defendant to an aggregate term of ten years, subject to eight years of parole ineligibility. On count one, defendant was to serve three years; on count two, five years subject to three years of parole ineligibility, to be served consecutively. On count three, five years without any parole eligibility was imposed, and on count four, five years subject to three years of parole ineligibility, concurrent to each other but consecutive to count two. Counts five and six were merged into count four. Appropriate fines and penalties were also imposed. For the reasons that follow, we affirm.
Some brief introduction is relevant to defendant's points on appeal. On February 23, 2009, after the trial concluded but before sentencing, in response to a letter from defendant, a judge who did not preside over the trial was assigned to conduct a hearing at which defendant's former wife, Davina Young, testified regarding her acquaintance with a juror. Young claimed she did not know the juror "personally, " but said she and the juror were students in the same college class. Young was not even "100 percent certain" it was the same person. She had not seen the juror "before, during, or after the trial, never talked to her, [didn't] know her name, that was it." Young mentioned this during the trial to her mother-in-law, and possibly her brother-in-law, but did not mention it to anyone outside defendant's family, including the detective who accompanied her to the courtroom when she testified for the prosecution.
Young also encountered the trial judge sometime after the trial at the bank where she worked. When she asked the judge if she had had to testify, the trial judge responded that she should have consulted with an attorney.
The attorneys and the second judge agreed that the individual involved was juror number three.  Ultimately the judge found that the information did not warrant a new trial or require juror number three "to come in to be questioned by the [c]ourt." The second judge also found no impropriety in the trial judge's brief interaction with Young while at the bank, or that it precluded her for any reason from sentencing defendant.
No transcript is available for the trial proceedings conducted on October 17, 2008. Portions of the record of that day were played to the jury during deliberations, but the recording available is largely inaudible.
Defendant raises the following points in his counseled brief for our consideration:
THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION OF ACQUITTAL AT THE CONCLUSION OF THE STATE'S CASE.
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE CONVICTIONS MUST THEREFORE BE REVERSED.
THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION FOR A MISTRIAL AND THE CONVICTIONS MUST THEREFORE BE REVERSED.
THE TRIAL COURT ERRED IN DENYING THE MOTION FOR A NEW TRIAL ON THE BASIS THAT THE STATE DISCARDED, DESTROYED AND WITHHELD EVIDENCE FROM THE DEFENSE.
A. The State discarded, destroyed or withheld the contents of the vehicle and converted the car to a DARE car.
B. The State withheld photographs of the car and its contents as well as a police report and a property report.
THIS MATTER SHOULD BE REMANDED FOR
RESENTENCING BECAUSE THE SENTENCE IMPOSED IS