               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-0930-17T1

STATE OF NEW JERSEY,

     Plaintiff-Respondent,               APPROVED FOR PUBLICATION

                                                 February 24, 2020
v.
                                             APPELLATE DIVISION

EDWIN ANDUJAR,

     Defendant-Appellant.
_____________________________

          Argued January 15, 2020 – Decided February 24, 2020

          Before Judges Koblitz, Whipple, and Mawla.

          On appeal from the Superior Court of New Jersey,
          Law Division, Essex County, Indictment No. 15-05-
          1096.

          John Douard, Assistant Deputy Public Defender,
          argued the cause for appellant (Joseph E. Krakora,
          Public Defender, attorney; John Douard, of counsel
          and on the briefs).

          Frank J. Ducoat and Emily M. M. Pirro, Special
          Deputy      Attorney     Generals/Acting   Assistant
          Prosecutors, argued the cause for respondent
          (Theodore N. Stephens II, Acting Essex County
          Prosecutor, attorney; Frank J. Ducoat and Emily M.
          M. Pirro, of counsel and on the brief).

     The opinion of the court was delivered by
WHIPPLE, J.A.D.

      Defendant Edwin Andujar appeals from an August 17, 2017 judgment of

conviction entered after a jury found him guilty of first-degree purposeful or

knowing murder, N.J.S.A. 2C:11-3(a)(1) and (2); fourth-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a

weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d).         Because the State

performed a criminal background check on the one Black juror it

unsuccessfully sought to exclude for cause, and the trial court then allowed an

unverified municipal warrant to result in the juror's exclusion, we now reverse.

      Defendant raises the following issues on appeal.

            POINT I

            DURING JURY SELECTION, THE PROSECUTOR
            PERFORMED A RECORD AND WARRANT
            CHECK ON ONLY ONE PROSPECTIVE JUROR, A
            YOUNG [BLACK] MAN WHO ACKNOWLEDGED
            DURING VOIR DIRE THAT HE HAD FRIENDS
            AND FAMILY WHO HAD CONTACTS WITH THE
            CRIMINAL    JUSTICE   SYSTEM,  THEREBY
            VIOLATING THE SPIRIT OF BATSON/GILMORE1
            BY DENYING ANDUJAR HIS RIGHT TO A JURY
            OF HIS PEERS AND DENYING THE JUROR HIS
            RIGHT TO SERVE ON THE JURY. MOREOVER,
            THE    PROCEDURE    PURSUED   BY   THE
            PROSECUTOR, IF PERMITTED, IS LIKELY TO


1
   Batson v. Kentucky, 476 U.S. 79 (1986); State v. Gilmore, 103 N.J. 508
(1986) (adopting Batson framework).


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                                       2
REDUCE JUROR PARTICIPATION FOR FEAR OF
REPRISALS BY THE STATE.

POINT II

IMPROPER COMMENTS MADE BY THE
PROSECUTOR IN SUMMATION EXCEEDED THE
BOUNDS OF PROPRIETY BY INFLAMING AND
MISLEADING THE JURY, THEREBY DEPRIVING
THE DEFENDANT OF HIS RIGHTS TO DUE
PROCESS AND A FAIR TRIAL.

POINT III

THE JUDGE DEPRIVED DEFENDANT OF HIS
RIGHTS TO PRESENT A DEFENSE, TO DUE
PROCESS, AND TO A FAIR TRIAL BY
IMPROPERLY      PRECLUDING      DEFENSE
COUNSEL FROM INTRODUCING EVIDENCE
THAT [DECEDENT]'S DEATH WAS A RESULT OF
HIS PREEXISTING MEDICAL CONDITIONS, AND
DELAY IN TRANSPORTING HIM TO THE
HOSPITAL; AND FURTHER, BY FAILING TO
PROVIDE THE DEFENDANT'S VERSION OF
CAUSATION IN THE FINAL JURY CHARGE. U.S.
CONST. AMENDS. V, XIV; N.J. CONST. ART.1
PARS.1,10.

     A. After Permitting Evidence That
     [Decedent]'s      Preexisting   Medical
     Conditions Combined With The Delay In
     Transporting Him To The Hospital For
     Surgery Were Contributing Factors In
     Causing His Death, The Judge Barred
     Defense Counsel From Arguing The
     Causation Issue In Her Summation.

     B. The Judge's Jury Charge On Causation
     Only Provided The Jury With The State's
     Theory Of Causation, And Explicitly Told

                                                A-0930-17T1
                        3
                     The Jury Not To Consider [Decedent]'s
                     Medical Condition As An Intervening
                     Cause Of His Death.

              POINT IV

              THE [FORTY-FIVE] YEAR AGGREGATE PRISON
              TERM, WITH A [THIRTY-EIGHT] YEAR PERIOD
              OF PAROLE INELIGIBILITY WAS MANIFESTLY
              EXCESSIVE AND UNDULY PUNITIVE.

        Having reviewed all defendant's arguments and the record presented, we

determined points two, three and four lack sufficient merit to warrant

discussion in a written opinion, Rule 2:11-3(e)(2).          Therefore, we concern

ourselves here only with the jury selection process and whether defendant was

denied his right to a fairly selected jury.

        During jury selection, prospective juror F.G. 2 was called to seat number

thirteen. F.G. told the court that there was no reason he could not be fair and

impartial in this case. He stated that he answered affirmatively to voir dire

questions 29, 30, and 31. 3 When asked about question 29, he explained that he


2
    We use the prospective juror's initials to protect his identity.
3
    The relevant portion of the jury questionnaire read:

              29.    Have you or any family member, close friend, or
                     acquaintance ever worked for an agency such as
                     a police department, prosecutor's office, the
                     FBI, DEA, a sheriff's department, jail, prison,
                     the Innocence Project, ACLU, private


                                                                          A-0930-17T1
                                           4
had one cousin who worked as a Newark police officer and another cousin who

worked as an Irvington police officer. He said he did not discuss their work

with them and that nothing about his relationship with them would interfere

with his ability to be fair and impartial. When asked who was accused of a

crime in regard to question 30, he responded: "A host of people." He also

stated "I know a host of people. I got two cousins too,"4 when asked who the

victim was in regard to question 31.

       The court called F.G. to sidebar to discuss his responses in more detail.

The judge asked F.G. how many people were accused, and F.G. answered: "I

know a lot of people." When pressed for numbers, F.G. estimated that five or

six close friends were accused and three were victims.        The court asked:

"[W]ith regard to the way anybody was a victim[,] . . . was accused[, or] was

treated by the criminal justice system[, does] that provide any reason for you


                   investigator's office or criminal defense
                   attorney, in N[ew] J[ersey] or elsewhere?

             30.   Have you, any family member or close friend
                   ever been accused of committing an offense
                   other than a minor motor vehicle offense?

             31.   Have you, any family member or close friend
                   ever been the victim of a crime, whether it was
                   reported to law enforcement or not?
4
    We do not correct the statements made by F.G.


                                                                        A-0930-17T1
                                       5
to say you might not be able to be a fair and impartial juror in this case?" F.G.

responded: "No. No." F.G. addressed each of the close friends one at a time.

      Regarding the first accused friend, F.G. said the friend had been selling

drugs in Newark; he remarked: "I don't know about the case. I just—they get

locked up after that it ain't got nothing to do with it." F.G. did not know

whether the friend pled guilty or had been tried, but he said he believed the

friend had been treated fairly by the justice system. As to his relationship with

this friend, F.G. said: "I went to high school with him, told him to come by

my mother's, hey, what is up, keep it moving." He said he had not seen the

friend since he was arrested.

      F.G. stated that a second friend was also arrested for selling a controlled

dangerous substance (CDS). He did not know what happened with him, but he

assumed it was the same as with his first friend. He said he had no impression

concerning whether the second friend was treated fairly by the judicial system:

"Honestly, I don't have any problem as long as I stay out of it." He also did

not know whether the second friend was tried or pled guilty. F.G. stated that

he believed the third friend was arrested for selling drugs at the same time as

the second friend and that the third friend was home, so he assumed he had

been treated fairly. When asked if these friends had been prosecuted by the




                                                                         A-0930-17T1
                                       6
Essex County Prosecutor's Office, F.G. explained that he did not know because

he did not "get into their business" and did not go to their court cases.

      F.G. recalled that a fourth friend was charged with gun possession about

seven years earlier. He had no impression of whether the friend had been

treated fairly and they never talked about his case. He said "I don't know if he

pleaded guilty. All I know he got trigger locked and he went away." He

explained "trigger locked" meant that the friend had three gun charges against

him, and "after the third one he went to the feds." When asked how he knew

about "trigger locked," he said "I grew up in a neighborhood where it just ain't

good. You learn a lot of things from the streets."

      F.G. could not think of anyone else who had been charged with a crime.

Regarding the victims, he stated that he had two cousins who were murdered.

One was stabbed in Newark fifteen years earlier, and the person arrested and

tried for the murder was acquitted. He stated he was upset the individual was

not convicted but he mostly stayed away from the whole situation. The other

cousin was shot in Kentucky thirteen years earlier and the perpetrator was

convicted and sent to prison. F.G. also recalled that a friend of his was robbed

two years earlier and no one was apprehended for the crime. When asked what

he thought about that, he stated "[a] lot of my friends live that lifestyle, so I

think it just come with the territory."



                                                                            A-0930-17T1
                                          7
      When the court asked if F.G. thought the fact that he knew people who

were accused of crimes and who were the victims of crimes would make him a

better juror than someone without those life experiences, F.G. said: "No" and

that he would view the evidence "the same as anybody else, background would

affect them." When asked for an explanation, he stated:

            What I was saying was, like, everybody in here, jurors
            and everybody, got a background. And, you know,
            this is different, that is why you getting judged by
            what [fourteen], [thirteen], and everybody got
            different perspectives about everything.

                   So, you know, what I'm saying, mine's might be
            a little different than the next person. The next
            person's might be a little different according to where
            they grew up and how they grew up.

      With regard to his background specifically and the "lifestyle" he

referenced, F.G. explained "a lot of friends I grew up in neighborhood, they

hustle, they selling drugs; that is what I meant by the lifestyle."

      F.G. went over his answers to the remainder of the jury questionnaire.

He stated that he graduated from high school and attended some college

classes. He worked for a municipal Department of Public Works, and in his

spare time he coached youth football. He said he believed that the criminal

justice system is fair because you are judged by your peers.

      After F.G. was sent back to his seat, the prosecutor requested that the

court remove him for cause because

                                                                      A-0930-17T1
                                         8
            [h]e has an awful lot of background. He says
      that he wants no parts of any of this, but he has a host,
      using his own language, of friends and family that
      have been accused of crimes, same as being victims.

             But when asked to give a number, he just kind
      of guessed at the number, [j]udge, he gave us a
      number that would satisfy us, the State submits. And I
      just felt that there [are] more people that he knows are
      accused and even more that could be victims. I think
      on a case like this he has had two cousins that were
      murdered, one was involved in a stabbing and a
      domestic dispute. It sort of mirrors the facts of this
      case. It is a risk to take a chance on somebody that
      might have a, you know, problem with his cousin
      getting murdered in a domestic dispute when we have
      the same set of facts in this case almost mirroring it.

             You know, he has‒he uses all of the lingo about,
      you know, the criminal justice system, talked about
      people getting picked up, talked about people getting
      trigger locked, talked about CDS, talks about the
      lifestyle. I just think that given his background and
      his extensive background in the criminal justice
      system with friends and family and knowing what the
      testimony in this case is going to be is problematic.
      And I think the juror should be excused for cause
      based on his answers to those questions.

In addition, a second assistant prosecutor added the following reasons:

            What I think is very concerning his close friends
      hustle, engaged in criminal activity. That is how his
      friends make a living. That draws into question
      whether he respects the criminal justice system,
      whether he respects what his role is here, and whether
      he is going to uphold all of the principles that he was
      instructed by your [h]onor.




                                                                  A-0930-17T1
                                 9
                    Additionally, I don't think that he was as
              forthcoming about his knowledge of the system. I
              know towards the end after probing by counsel and by
              your [h]onor, he did admit he knew a term such as
              "trigger locking" and the way things worked. But in
              the beginning he seemed to just not be forthcoming,
              no, I don't really know, I know they are locked up, I
              don't hear anything. I don't think he was being fully
              honest.

        Defense counsel opposed the application, arguing that "the State's

position is untenable in the sense that it means that no Black man in Newark

would be able to sit on this jury." The court stated he understood defense

counsel's point and denied the request, stating:

              I don't think there has been any reason at all that this
              juror should be excused for cause.

                    ....

                    Everything he said and the way he said it leaves
              no doubt in my mind that he's not expressed or does
              not have any bias towards the State nor the defense for
              anything. What he said, how he said it. I think he
              would make a fair and impartial juror. I don't have
              any reason to doubt it, so that application is denied.

        After the juror was seated, the assistant prosecutor conducted a criminal

record check on F.G. The next day, the judge revealed on the record that the

prosecutor came to see him in chambers the previous afternoon to talk about

F.G.:

              [The prosecutor] said basically that the man had been
              arrested before. He had warrants out for him. They

                                                                         A-0930-17T1
                                        10
              were going to lock him up. And then they gave me
              some papers, I guess, corroborating what they were
              saying, which was incident reports and some printouts.

                    ....

              One warrant out of Newark Municipal Court. My
              question is simple. What application of relief does
              either side have because the court only responds to
              application[s] of relief.

      The prosecutor renewed her application to have F.G. removed for cause.

Defense counsel initially did not oppose the State's application but requested

that F.G. be arrested out of the presence of the jury pool. The court and the

prosecutor agreed that the arrest would be executed elsewhere in the

courthouse.

      Later, the court asked the sheriff's officer to look outside to see if F.G.

was there. The officer confirmed F.G.'s presence and the prosecutor made a

phone call to determine the best way to isolate him from the other prospective

jurors. At that point, defense counsel expressed concern that arresting F.G.

would taint the entire jury and asserted: "I think coming to court for jury

service no one expects they are going to be looked up to see if they have

warrants." The court suggested a plan whereby all prospective jurors would be

seated and then F.G. would be excused with directions to report to the first

floor. "And when he walks out of this courtroom, it will not be to the first

floor he returns. It will be into the grasp of your law enforcement off icer."

                                                                          A-0930-17T1
                                        11
      The prosecutor agreed to this plan and added that the State was not in the

habit of looking at random jurors' criminal histories. She asserted the check

was conducted because of F.G.'s acknowledgement that he associated with

people who "hustle drugs," and the court's refusal to excuse him for cause.

Her research revealed that F.G. had an open municipal warrant as well as two

arrests in the past "both for domestic violence where it seems he has an alleged

habit of beating up women." The prosecutor also rejected defense counsel's

assertion that her motion to remove F.G. for cause was based on racial bias. In

making these statements, the prosecutor referred to a meeting in chambers, that

is not transcribed or otherwise contained in the record, in which defense

counsel accused her of moving against F.G. because of racial bias.

      An argument ensued between the attorneys, which the court cut short

stating:

                  I'm stopping this. . . . Nobody asked this court
            for any relief. The only thing that I know is the
            prosecutor, based on new information, made an
            application, applied to excuse the juror for cause.
            Defense counsel did not disagree or consent[] to it. So
            they were excused for cause. That is the only [horse]
            the court had in the race.

      The court took a short break, after which defense counsel said that she

had the opportunity to speak with her office and she withdrew her consent to

the dismissal of F.G. for cause. She requested as a remedy for the State's



                                                                        A-0930-17T1
                                      12
action that defendant be awarded an additional peremptory challenge. The

court reserved on the application and directed counsel to try to reach a

compromise on the matter.

      The court then called in the jury pool, and informed F.G. that he was

excused and that he should report to the first floor. F.G. left, after wishing that

the court "[h]ave a nice day." He was arrested immediately thereafter once

officers checked to make sure the hallway was clear of potential jurors.

      Counsel were unable to reach an agreement on the remedy for F.G.'s

dismissal for cause and continued to argue as to whether the State's action was

legally supportable. The prosecutor contended that it did not matter because

F.G. was under arrest and unavailable for jury duty. She also claimed that

F.G. had been dishonest in his answers to the court's questions, to which

defense counsel replied that there was no evidence that F.G. knew that he had

accusations against him. The court found that there was no reason to grant the

relief defense counsel was seeking and the court formally denied defendant's

application for an extra peremptory challenge.

      Additional voir dire ensued, after which all counsels stated that they

were satisfied with the jury as seated.       At that point, the State had one

peremptory challenge remaining, and defendant had two.




                                                                           A-0930-17T1
                                        13
      On appeal, defendant argues the implicit bias in the prosecutor's

procedure renders the procedure constitutionally suspect because it violates the

underlying constitutional principles that protect both defendant and potential

jurors from discriminatory jury selection processes. Defendant argues that the

prosecutor's selective use of a background check, on a Black juror, as a means

of making the juror unavailable, impermissibly allowed the State to circumvent

a Batson v. Kentucky, 476 U.S. 79 (1986) determination. We agree.

                                        I

      We are confronted with the following questions: (1) whether the

prosecutor improperly utilized a criminal record check to selectively

investigate a single minority member of the jury; and (2) whether the Batson

framework is applicable to situations where a prosecutor has the prospective

juror arrested, based on that selective criminal record check, after a court

decides the juror should not be dismissed for cause and a Batson question has

been raised. Before reaching the underlying merits of this claim, we must first

address the State's contention that defendant waived the right to challenge the

jury composition on appeal.

      There is no question that "[t]he jurisdiction of appellate courts rightly is

bounded by the proofs and objections critically explored on the record before

the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19



                                                                         A-0930-17T1
                                       14
(2009). The trial court must be alerted to the "basic problem" and have the

opportunity to consciously rule upon it before the issue may be raised for

appellate review.   Ibid. (citations and internal quotation omitted); see also

State v. Witt, 223 N.J. 409, 419 (2015) (noting our appellate courts will

decline to consider issues not properly presented to trial court when

opportunity for such presentation is available).     The New Jersey Supreme

Court observed:

            [I]f late-blooming issues were allowed to be raised for
            the first time on appeal, this would be an incentive for
            game-playing by counsel, for acquiescing through
            silence when risky rulings are made, and, when they
            can no longer be corrected at the trial level, unveiling
            them as new weapons on appeal.

            [Robinson, 200 N.J. at 19 (quoting Frank M. Coffin,
            On Appeal: Courts, Lawyering, and Judging 84-85
            (W.W. Norton & Co. 1994)).]
      The law as stated in Robinson, and Witt, does not bar defendant from

challenging F.G.'s dismissal. This issue was clearly raised by defense counsel

at trial. Virtually the first action taken by defense counsel, when she heard the

State's motion to dismiss F.G., was to object to the prosecutor's use of a record

check to exclude an urban Black man from the jury. Thus, the charge of racial

profiling in the selective performance of record checks was plainly in front of

the trial court. Additionally, the court heard argument on issues surrounding

F.G. and had ample opportunity to rule upon them. The court made no formal


                                                                        A-0930-17T1
                                       15
ruling, however, because it recognized what defendant raises in his response to

the State's argument; once F.G. was arrested by the State, the court had no

choice but to excuse him for cause, since he was rendered unavailable by his

arrest.   Likewise, once F.G. was arrested, there was no point in defense

counsel continuing to argue that he should be seated on the jury.

      The situation here is analogous to what occurs in a Batson challenge.

The procedure that is followed when a defendant claims bias in the

prosecution's exercise of peremptory challenges requires that the defendant

raise a timely objection during or at the end of jury selection.         State v.

Gilmore, 103 N.J. 508, 535 (1986). The defendant is not deprived of an appeal

if his objection is overruled and the matter proceeds to trial before a jury to

which he ultimately assents. Similarly, here, defense counsel made known her

objection to the prosecutor's performance of a criminal record check on F.G.,

her lack of consent to the for-cause dismissal of F.G., and her desire for some

sort of remedy. For these reasons, it would be fundamentally unfair to deprive

defendant of the right to appeal the actions of the prosecutor, and the rulings of

the court in declining to grant defendant any remedy.

                                        II

      We now turn to the question of whether the prosecutor improperly

utilized the criminal record check in selectively investigating a single minority



                                                                         A-0930-17T1
                                       16
member of the jury. The only case in New Jersey that has considered the

propriety of a prosecutor conducting criminal background checks on

prospective jurors is In re State ex rel. Essex Cty. Prosecutor's Office, 427 N.J.

Super. 1 (Law Div. 2012). There, Assignment Judge Patricia Costello denied

the State's request that the "court order the jury manager to turn over the dates

of birth of certain persons in the petit jury pool to the State to facilitate

running criminal background checks on those potential jurors." Id. at 4, 26.

        In analyzing the State's request, Judge Costello reviewed the evolution

of voir dire questioning of potential jurors in New Jersey. Id. at 6-13. She

noted that New Jersey laws concerning questioning of potential jurors

originated from the English common law tradition in which examination was

only allowed after a litigant posed a challenge for cause, supported by extrinsic

evidence.    Id. at 7.   Through a progression of Supreme Court decisions,

legislation, court rule changes, and administrative directives, the modern

practice developed in which the responsibility for voir dire questioning was

placed in the hands of the trial judge, who could question jurors "only

according to limited prescribed guidelines and almost never under oath." Id. at

6-13.

        The judge observed that "the action proposed here by the State would

represent a next step in a progression from a system in which jurors are



                                                                         A-0930-17T1
                                       17
implicitly trusted to one in which their disinterest and qualifications to sit on a

case are verified by pre-trial investigation." Id. at 13-14. The judge cautioned

that such a next step would represent an "acute departure" from the practice

currently established where the Judiciary bears the responsibility of inquiring

into the qualification of potential jurors. Id. at 14.

        The State contended that confirming whether jurors are qualified to

serve falls under the enforcement power granted to a county prosecutor by

N.J.S.A. 2A:158-5. Id. at 15. Further, it argued that the Administrative Code,

N.J.A.C. 13:59-2.1, allows criminal justice agencies to access criminal history

record information. Ibid. Judge Costello recognized the authority granted to

the prosecutor by these provisions but noted that "[n]owhere . . . does it state

that the court is obligated to provide other criminal justice agencies with

information they require in order to facilitate criminal background checks."

Ibid.

        Judge Costello specifically noted that "[t]he issue of whether N.J.A.C.

13:59-1 to -2.4 actually authorizes the State to conduct criminal background

checks on potential jurors is not before the court in this application." Id. at 19

n.15. Rather, her holding addressed only the court's obligation to turn over

potential jurors' birthdates to the prosecution. In finding that such information

was privileged, the judge relied on the jurors' reasonable expectation of



                                                                          A-0930-17T1
                                         18
privacy in the information they provided in their juror qualification forms. Id.

at 18-19. She concluded:

             If the Judiciary is to disseminate the personal
             information it collects from administering the county's
             jury-related functions, it must first and foremost be
             convinced that there is a genuine need that can in
             some way be addressed by that dissemination. Here,
             although the State's brief demonstrates that
             unqualified individuals' service as jurors can be a
             legitimate public problem, it does not demonstrate that
             it has been so in New Jersey, or that this problem is
             sufficiently serious as to merit the solution it
             proposes. Its proposed relief would not merely serve
             the neutral concerns of ensuring the efficiency and
             validity of court proceedings, but would instead in
             large part serve to benefit the State's own interests at
             the expense of criminal defendants.

             [Id. at 20.]

      Under Rule 1:8-5, the clerk of the court must provide any requesting

party a list of the general panel of petit jurors at least ten days prior to the date

of trial.   Id. at 22-23.    Also provided under Rule 1:8-5 is each juror's

municipality, but not his or her street address. Id. at 23 n.17. Judge Costello

ruled the assignment judge lacked both statutory and constitutional authority to

disseminate any other identifying information contained in prospective jurors'

questionnaires. Id. at 24.

      In dicta, she commented:

             [A]ll of the opponents of the State's motion note the
             very real possibility of abuse should the State be given

                                                                            A-0930-17T1
                                         19
             the information requested in its motion without
             sufficient oversight. The ACDL-NJ[5] argues that, if
             the motion were to be granted, it would be entirely in
             the State's discretion to decide which jurors to
             research and for what reasons. This raises the specter
             of concerns addressed in Batson . . . and . . . Gilmore
             . . . i.e. issues of fairness in jury composition. These
             concerns are legitimate, and the State offered no
             substantive proposals to alleviate them.

             [Id. at 25.]

       Like in Essex County, the question of whether New Jersey laws

authorize the State generally to conduct criminal background checks on

potential jurors is not before us.        The New Jersey Administrative Code

addresses when prosecutors can run criminal record checks. N.J.A.C. 13:59-

2.1(a) provides:

             Criminal justice agencies, for purposes of the
             administration of criminal justice, may obtain from the
             SBI[6] or otherwise access information collected by
             criminal justice agencies concerning persons and
             stored in the central repository of the New Jersey State
             Police SBI, the National Crime Information Center . . .
             or other states' computerized repositories containing
             criminal history record information.

             [(Emphasis added).]

       N.J.A.C. 13:59-2.4(b), provides:

5
    Association of Criminal Defense Lawyers of New Jersey.
6
   N.J.A.C. 13:59-1.1 defines "SBI" as "the State Bureau of Identification
created by N.J.S.A. 53:1-12 as a bureau within the Division of State Police."


                                                                        A-0930-17T1
                                       20
            The [SBI] shall prominently display the following on
            any record disseminated for criminal justice purposes.

                  Use of this record is governed by Federal
                  and state statutes and regulations. Unless
                  fingerprints accompanied your inquiry, the
                  [SBI] cannot guarantee this record relates
                  to the person who is the subject of your
                  request. Use of this record shall be limited
                  solely to the authorized criminal justice
                  purpose for which it was given and it shall
                  not be further disseminated for any other
                  purpose. . . .

                  A person is presumed innocent of any
                  charges or arrests for which there are no
                  final dispositions indicated on the record.
                  This record is certified as a true copy of
                  the criminal history record information on
                  file for the assigned SBI number.

                  [(Emphasis added).]

      We question whether performing a criminal record check for the purpose

of disqualifying a juror at trial supports "the administration of justice."

Additionally, the prosecutor performed the check on F.G. based on his name,

which the State claims was "sufficiently unique." It offered no proof of that

claim. Without a fingerprint, social security number, birthdate, or even a street

address, there was no way to be sure the records the State obtained pertained to

F.G., who had reported to the courtroom for jury duty. The regulation itself

warns that without fingerprints the SBI cannot guarantee that the record relates

to the subject of the request.

                                                                        A-0930-17T1
                                        21
      The municipal warrant that the State uncovered is not part of the record

on appeal.    Nor is there any documentation to support the prosecutor's

assertion that F.G. "beat women." We emphasize New Jersey does not bar

people from juries because they have been arrested, nor do we bar people who

have municipal warrants or convictions for traffic violations, juvenile offenses

or other non-indictable offenses. New Jersey requires that jurors "shall not

have been convicted of any indictable offense under the laws of this [s]tate,

another state, or the United States." N.J.S.A. 2B:20-1(e).

      It is unknown if there were domestic violence accusations against F.G.,

and if so whether they arose from police incident reports, proceedings in the

family court, or criminal charges. Further, the nature of the municipal warrant

is unknown. If it was the result of unpaid traffic violations, then F.G. may not

have been intentionally lying when he said he had never been accused of an

offense other than a minor motor vehicle offense. 7


7
   According to the Report of the Supreme Court Working Group on the
Municipal Courts dated July 8, 2019, the Supreme Court Committee was
charged with conducting a reform-minded review of Municipal Court
practices, particularly those that can have a detrimental effect on individuals
with lesser means. Report of the Supreme Court Working Group on the
Municipal Courts 1 (July 8, 2019). One of the initiatives realized was the
development of a multi-pronged approach to ensure that bench warrants are
issued only when they may be useful and necessary. Id. at 4. Consistent with
that end, in January 2019, the Chief Justice signed an order on behalf of the
Supreme Court dismissing over three quarters of a million minor Municipal


                                                                        A-0930-17T1
                                       22
      Although we do not reach the question of whether a criminal record

check is authorized during jury voir dire, a more complete record should have

been made before the court granted the prosecutor's request to dismiss F.G. for

cause. F.G. was a seated juror under the court's control, and therefore, the

State should not have undertaken such measures that would render a seated

juror unavailable without leave of court.        The results of the criminal

background check should have been read into the record. All arguments on the

matter should have been transcribed rather than conducted off the record in

chambers. Most importantly, because it is the judge's role to preside over the

trial and promote respect for the process, the judge should have questioned

F.G.—out of the presence of other prospective jurors—about the results of the

record check. F.G. would thus have had the opportunity to confirm whether he

was the actual subject of the record check and whether he was aware that a

municipal warrant had been issued against him.

                                       III




Court matters that were at least fifteen years old due to questions of fairness,
the use of public resources and the ability of the State to prosecute them. New
Jersey Courts, Supreme Court Dismisses Old Municipal Court Warrants in
Minor               Matters             (Jan.              17,             2019),
https://njcourts.gov/pressrel/2019/pr011719a.pdf. We do not know if the
municipal warrant in this matter would have fallen into that category.


                                                                        A-0930-17T1
                                       23
      Recognizing a more complete record should have been made, we now

turn to the facts of the instant case to determine whether the prosecutor's

selective investigation, on a single minority member of the jury, and the

consequences    which      stemmed    therefrom    are   permissible     under     a

Batson/Gilmore analysis.

      Defendant asserts that the portions of F.G.'s voir dire that the State calls

suspicious represent experiences that many young, urban minorities share.

Defendant argues the prosecutor's suspicion that a record check would turn up

grounds for excluding F.G. from the jury was the result of the implicit bias

inherent in many aspects of the criminal justice system. For that reason, and in

light of the law established by Batson, 476 U.S. at 84, Gilmore, 103 N.J. at

523, and State v. Osorio, 199 N.J. 486, 492-93 (2009), defendant urges the

court to reverse his conviction and remand the matter for a new trial.

      The State argues the prosecutor's conduct was not based on bias and was

supported by F.G.'s answers to voir dire questions. It maintains that under a

Batson/Gilmore analysis, "defendant could not have shown even a prima facie

case of discrimination in the prosecutor's checking of prospective jurors'

backgrounds".

      The United States Supreme Court has long recognized that the

Constitution forbids striking even a single juror for a discriminatory purpose.



                                                                          A-0930-17T1
                                       24
See Foster v. Chatman, 136 S. Ct. 1737 (2016). Indeed, the Court has made

clear that racial discrimination in the selection of a jury violates a defendant's

right to equal protection of the law, unconstitutionally excludes an individual

from jury service, and harms the entire community by undermining public

confidence in the fairness of our judicial system. Batson, 476 U.S. at 86-87.

"Discrimination within the judicial system is most pernicious because it is 'a

stimulant to that race prejudice which is an impediment to securing to [ Black

citizens] that equal justice which the law aims to secure to all others.'" Id. at

87-88 (quoting Strauder v. West Virginia, 100 U.S. 303, 308 (1880)).

      In Batson, 476 U.S. at 96-98, the Court recognized that the Equal

Protection Clause of the United States Constitution prohibits the use of

peremptory challenges to exclude jurors on account of their race and provided

a three-step framework to determine when the challenges are improperly used.

First, the opponent of the peremptory challenge must "make a prima facie

showing that [the] challenge has been exercised on the basis of race." State v.

Thompson, 224 N.J. 324, 339 (2016) (discussing the Batson framework).

"Once this burden has been met, the prosecutor 'must offer a race-neutral basis

for striking the juror in question.'" Ibid. (citation omitted). Lastly, the trial

judge is tasked with determining whether the opponent proved intentional

discrimination. Ibid.



                                                                         A-0930-17T1
                                       25
      Utilizing the Batson framework, the Court in Hernandez v. New York,

500 U.S. 352, 359-60 (1991), instructed that when addressing the question of

whether a peremptory challenge violates the Equal Protection Clause, courts

"must keep in mind the fundamental principle that 'official action will not be

held unconstitutional solely because it results in a racially disproportionate

impact. . . . Proof of racially discriminatory intent or purpose is required to

show a violation. . . .'" In that case, the defendant objected to the State's use of

its peremptory challenges to exclude Latino potential jurors. Id. at 355-56.

The State asserted its basis for striking the jurors in question was based on its

uncertainty that the bi-lingual jurors would be able to listen and follow the

interpreter.   Id. at 356.    The Court found that disparate impact is not

conclusive in the preliminary race-neutrality step of Batson, as an argument

relating to the impact of a classification does not alone show its purpose. Id. at

361-63.

      Instead, the Court noted disparate impact is germane to the trial court's

consideration of whether purposeful discrimination existed. Id. at 363. The

Court added "'[a]n invidious discriminatory purpose may often be inferred

from the totality of the relevant facts, including the fact, if it is true, that the

[classification] bears more heavily on one race than another.'" Ibid. (alteration

in original) (citation omitted). Stated differently, the Court instructed that a



                                                                           A-0930-17T1
                                        26
trial court may consider the fact that a prosecutor's peremptory challenge

results in the disproportionate exclusion of members of a certain race in

determining whether the State's reason constitutes a pretext for racial

discrimination. Id. at 363-64.

      Recently, in Flowers v. Mississippi, 139 S. Ct. 2228, 2251 (2019), the

Court emphasized the importance of assessing all the relevant facts and

circumstances when determining whether a peremptory strike was motivated in

substantial part by discriminatory intent. In that case, a Black male defendant

was tried six separate times for the murder of four employees of a Mississippi

store, three of whom were White. Id. at 2234, 2236. There, the Court assessed

the relevant history of the first four trials and concluded the history of the case

strongly supported that the State's use of peremptory strikes, in the sixth trial,

was motived in substantial part by discriminatory intent. Id. at 2245-46. The

Court noted:

            Stretching across [defendant]'s first four trials, the
            State employed its peremptory strikes to remove as
            many [B]lack prospective jurors as possible. The
            State appeared to proceed as if Batson had never been
            decided. The State's relentless, determined effort to
            rid the jury of [B]lack individuals strongly suggests
            that the State wanted to try [defendant] before a jury
            with as few [B]lack jurors as possible, and ideally
            before an all-[W]hite jury.

            [Id. at 2246.]



                                                                          A-0930-17T1
                                        27
The Court stated that four critical facts, taken together, warranted reversal: (1)

the State utilized its peremptory challenges, in the six trials combined, to strike

forty-one of the forty-two Black prospective jurors; (2) in the sixth trial the

State used its peremptory strikes on five of the six Black prospective jurors;

(3) "at the sixth trial, in an apparent effort to find pretextual reasons to strike

[B]lack prospective jurors, the State engaged in dramatically disparate

questioning of [B]lack and [W]hite prospective jurors;" and (4) "the State then

struck at least one [B]lack prospective juror . . . who was similarly situated to

[W]hite prospective jurors. . . ." Id. at 2235.

      Although the Court declined to decide whether any of those four facts

alone would require reversal, id. at 2235, it stated that disparate questioning,

along with other evidence, may inform the trial court's evaluation as to

whether discrimination occurred, id. at 2248. The Court noted:

            [T]his Court's cases explain that disparate questioning
            and investigation of prospective jurors on the basis of
            race can arm a prosecutor with seemingly race-neutral
            reasons to strike the prospective jurors of a particular
            race. . . . [A] prosecutor can try to find some
            pretextual reason–any reason–that the prosecutor can
            later articulate to justify what is in reality a racially
            motivated strike. And by . . . not asking [W]hite
            prospective jurors those same questions, the
            prosecutor can try to distort the record so as to thereby
            avoid being accused of treating [B]lack and [W]hite
            jurors differently.     Disparity in questioning and
            investigation can produce a record that says little
            about [W]hite prospective jurors and is therefore

                                                                          A-0930-17T1
                                        28
            resistant      to        characteristic-by-characteristic
            comparisons of struck [B]lack prospective jurors and
            seated [W]hite jurors. . . . A court confronting that
            kind of pattern cannot ignore it. The lopsidedness of
            the prosecutor's questioning and inquiry can itself be
            evidence of the prosecutor's objective as much as it is
            of the actual qualifications of the [B]lack and [W]hite
            prospective jurors who are struck or seated. . . .

            [Id. at 2247-48.]

      After Batson, our Supreme Court, in Gilmore, 103 N.J. at 524,

"determined that the provisions of the New Jersey Constitution, Article I,

Paragraphs five, nine, and ten, likewise prohibited a prosecutor from

exercising peremptory challenges on the basis of religious principles, race,

color, ancestry, national origin, or sex." Thompson, 224 N.J. at 340. There,

the Court explained the main point of drawing a jury from a representative

cross-section of the community is "to achieve an overall impartiality by

allowing the interaction of the diverse beliefs and values the jurors bring from

their group experiences. . . ." Gilmore, 103 N.J. at 525 (quoting People v.

Wheeler, 583 P.2d 748, 761 (Cal. 1978)).        The three-step Batson/Gilmore

methodology was refined slightly in Osorio, 199 N.J. at 492-93, where the

Court explained the requirements of each stage of the process.

      For the first step, the Court clarified that the burden of establishing a

prima facie case is not intended to be onerous and will be satisfied if the

defendant   produces   sufficient   evidence    to   draw   an   inference   that

                                                                        A-0930-17T1
                                       29
discrimination has occurred.      Id. at 501-02.     Once a prima facie case is

established, the second step shifts the burden to the prosecution to articulate a

clear and reasonably specific explanation justifying its action. Id. at 504. The

Osorio court cautioned that in deciding whether the prosecutor has

successfully rebutted the inference, "the trial court must be sensitive to the

possibility that 'hunches,' 'gut reactions,' and 'seat of the pants instincts' may be

colloquial euphemisms for the very prejudice that constitutes impermissible

presumed group bias or invidious discrimination."             Id. at 505 (quoting

Gilmore, 103 N.J. at 539).

      The third step requires the trial court to judge the defendant's prima facie

case against the prosecution's rebuttal to determine whether the defendant has

carried the ultimate burden of proving, by a preponderance of the evidence,

that the prosecution's actions were exercised on grounds of presumed group

bias. Id. at 506. The Osorio Court cited approvingly State v. Clark, 316 N.J.

Super. 462, 473-74 (App. Div. 1998), as setting forth the factors the trial court

should consider when engaging in such an analysis. 199 N.J. at 506-07. These

factors include whether the prosecution has applied the reasons proffered for

its actions evenhandedly to all prospective jurors, the overall pattern of the

prosecution's actions, and the composition of the jury ultimately selected to try

the case. Ibid.



                                                                            A-0930-17T1
                                         30
      Here, it is important to note the trial judge, having listened to the

arguments of two assistant prosecutors, rejected their application, finding that

there was no reason at all to excuse F.G. for cause. He based his decision not

only on what F.G. said but also on the way he said it. Such a credibility

determination lies well within the considerable discretion afforded the cou rt in

such matters. See State v. Locurto, 157 N.J. 463, 473 (1999).

      Despite the trial court's finding, the prosecutor elected to conduct a

criminal record check on F.G. and stated, in support of her second motion for a

for-cause dismissal, her reasons for performing the check. The prosecutor

asserted:

            [T]he State is not in the habit of doing what counsel
            just suggested where we are looking at a random
            juror's [criminal record]. [F.G.'s] background and his
            acknowledgment that he hangs out with people that
            are in a lifestyle and hustling drugs and getting
            arrested, the dozens of criminal elements that he
            produced here at sidebar raised the concern for the
            State. Where I asked for him to be excused for cause,
            he was not.

      The prosecutor also informed the court that the record check revealed

that F.G. had an outstanding municipal warrant, and that the State was going to

have him arrested. Defense counsel argued that because F.G. was selectively

targeted for a background check, constitutional concerns such as a person's

right to sit on a jury were implicated.      Nevertheless, F.G. was arrested,



                                                                        A-0930-17T1
                                       31
therefore making him unavailable, and the defense was awarded no remedy.

The trial court should have engaged in a Batson/Gilmore analysis.

      We acknowledge that many of the considerations used to determine

whether a defendant satisfied the standard for a prima facie Batson/Gilmore

challenge are uniquely geared to the peremptory challenge process and do not

translate well to the performance of criminal background checks.            For

example, both Osorio and Gilmore listed as an important consideration

whether the prosecutor "struck most or all of the members of the identified

group from the venire." Osorio, 199 N.J. at 503 (quoting Gilmore 103 N.J. at

536). Here, the challenged action was the prosecutor's performance of only

one background check, the subject of which was a member of the identified

group. Most of the Osorio factors concern common traits of the stricken jurors

and patterns of the prosecution's use of peremptory challenges. Ibid. Such

group characteristics may not be discerned from a single, selective

performance of a record check.

      Nevertheless, we reject the State's argument that defendant could not

have made a colorable argument for even a prima facie case of discrimination.

As the Supreme Court of the United States instructed in Flowers, disparate

investigation of prospective jurors based on race, along with other evidence,

may inform the trial court's evaluation as to whether discrimination occurred.



                                                                      A-0930-17T1
                                     32
F.G. was a member of a protected group, and no member of a non-protected

group was subjected to a record check. It is not difficult to surmise that

running criminal background checks only on minority jurors could result in a

majority jury.

      Additionally, as noted in Hernandez, defendant's contention that portions

of F.G.'s voir dire which the State called suspicious represent experiences that

are more common to minorities than non-minorities, if true, is also germane to

the trial court's determination as to whether discriminatory intent exists, as

discriminatory purpose may often be inferred where classifications bear more

heavily on one race than another.       Moreover, the prosecutor's proffered

explanation for performing the record check was very much like the sort of

speculation against which Osorio cautioned.      The prosecutor presented no

characteristic personal to F.G. that caused concern, but instead argued

essentially that because he grew up and lived in a neighborhood where he was

exposed to criminal behavior, he must have done something wrong himself or

must lack respect for the criminal justice system. This is not a new argument;

Black jurors have historically faced the attribution they will show leniency

toward defendants and are indifferent to criminality.       See Thomas Ward

Frampton, The Jim Crow Jury, 71 Vanderbilt Law Review, 1593, 1603 (2018).




                                                                        A-0930-17T1
                                      33
Such reasoning may have arisen from the sort of prejudice that constitutes

impermissible presumed group bias.

      In the end, we cannot determine with certainty whether the prosecutor

applied her reasons evenhandedly to all prospective jurors, because we do not

know: whether any other venire members responded affirmatively to questions

about the involvement of friends or family members with the criminal justice

system; if any other venire members grew up or lived in the same area of

Newark as F.G.; or the racial composition of the jury that convicted defendant.

      The State's argument that even if the record check was performed

improperly, there was no relief available to rectify the matter ignores the

remedies available to a trial court to address Batson/Gilmore violations. The

court could have dismissed the empaneled jury members and begun jury

selection anew; it could have ordered the prosecutor to forfeit her remaining

peremptory challenges; or it could have granted additional peremptory

challenges to the defense. State v. Andrews, 216 N.J. 271, 293 (2013). The

court should have allowed F.G. to explain the alleged municipal warrant, and

if satisfied by his responses, the judge could have refused to grant a dismissal

for cause even in the face of the juror's potential arrest. We do not presume

that arrest on a municipal warrant would have made F.G. unavailable for trial.




                                                                        A-0930-17T1
                                      34
         In order to secure a defendant's right to a jury as guaranteed by the

United States and New Jersey constitutions, we compel citizens by summons

to come to the courthouse to be considered as potential jurors. For most, this

is a disruption of their work and family lives.         We ask them to disclose

personal, often uncomfortable information. The compulsion to appear should

not include the threat of arrest if we seek to convincingly assure the citizenry

that jury service is an honor and a duty.           Record checks run because of

dissatisfaction with a judge's ruling, as was done here, undermine the

framework within which the trial proceeds and alters the court's exclusive

province in administration of the jury venire. Because the court made no

findings of fact concerning the prosecution's selective use of a criminal record

check and granted no relief to the defense whatsoever, defendant's conviction

must be reversed, his sentence vacated, and the matter remanded for a new

trial.

         Reversed. We do not retain jurisdiction.




                                                                         A-0930-17T1
                                        35
