Argued November 12, 2014.
Approved for Publication November 26, 2014.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-08-0662.
Jason A. Coe, Assistant Deputy Public Defender, argued the cause for appellant ( Joseph E. Krakora, Public Defender, attorney; Mr. Coe, of counsel and on the brief).
Gretchen A. Pickering, Assistant Prosecutor, argued the cause for respondent ( Robert L. Taylor, Cape May County Prosecutor, attorney; Ms. Pickering, of counsel and on the brief).
Before REISNER, KOBLITZ and HAAS
[438 N.J.Super. 339]
Following a remand from this court, State v. Pruitt, 430 N.J.Super. 261, 63 A.3d 1225 (App.Div. 2013), the Law Division held a hearing and determined that during jury selection at defendant's criminal trial, the prosecutor's use of a peremptory challenge to remove the only African-American juror did not " disclose a constitutional violation." Defendant Markees Pruitt appeals from the remand order dated July 9, 2013. After reviewing the record in light of the applicable legal standards, we affirm.
The background is set forth at length in our prior opinion and need not be repeated here. In brief, defendant was on trial for multiple counts of illegal drug distribution, and the State's case [438 N.J.Super. 340] was based on evidence of a series of drug purchases from defendant by undercover police officers. Defendant is African-American, and there were only two African-Americans in the jury pool. One African-American juror was excused for cause, and the prosecutor later excused the other, who was Juror Thirteen, using a peremptory challenge. As soon as the prosecutor used the peremptory challenge, defense counsel asked the trial judge to conduct a hearing pursuant to State v. Gilmore, 103 N.J. 508, 535-39, 511 A.2d 1150 (1986). See also Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 1723-24, 90 L.Ed.2d 69, 87-89 (1986). The judge denied the request because the prosecutor had only excused one African-American juror.
On appeal, we concluded that the judge's decision was contrary to the principles set forth in State v. Osorio, 199 N.J. 486, 973 A.2d 365 (2009), which stated the following standards for determining whether a defendant has presented a prima facie case in mounting a Gilmore challenge:
In determining whether a defendant has produced evidence sufficient " to draw an inference that discrimination has occurred[,]" the Court directed trial courts to ...