NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-06-1471.
Joseph E. Krakora, Public Defender, attorney for appellant (Marcia Blum, Assistant Deputy Public Defender, of counsel and on the brief).
Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).
Before Judges Sapp-Peterson and Nugent.
After a deliberating juror inexplicably failed to return to court to resume the second day of jury deliberations, the court replaced the unexcused juror with an alternate juror and recharged the re-constituted jury. The jury commenced deliberations anew and, after nearly three hours of deliberations, reached a verdict finding defendant guilty of second-degree robbery, N.J.S.A. 2C:15-1. At sentencing, the court imposed a six-year custodial term and additionally imposed fines and penalties. We now reverse.
On appeal defendant raises two points:
THE TRIAL COURT ERRED IN REFUSING TO VOIR DIRE THE JURY AFTER IT ASKED IF IT COULD DISMISS "A PARTICULAR JUROR" AND A JUROR FAILED TO APPEAR THE FOLLOWING DAY[.]
IN VIEW OF THE FACT THE DEFENSE WAS BASED ON MISTAKEN IDENTIFICATION, THE COURT ERRED IN FAILING TO CHARGE ON ...