                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-5716-12T4




STATE OF NEW JERSEY,
                                        APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                           November 26, 2014
v.                                        APPELLATE DIVISION

MARKEES PRUITT,

     Defendant-Appellant.
___________________________

         Argued November 12, 2014 – Decided November 26, 2014

         Before Judges Reisner, Koblitz1 and Haas.

         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).

1
  Judge Koblitz did not participate in oral argument. However,
with consent of counsel she has joined in this opinion.     R.
2:13-2(b).
       The opinion of the court was delivered by

REISNER, P.J.A.D.

       Following a remand from this court, State v. Pruitt, 430

N.J.    Super.      261   (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.

                                                  I

       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 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        (1986).       See    also       Batson     v.



                                                  2                                      A-5716-12T4
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    (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 consider the following factors:

                  (1) that the prosecutor struck
                  most or all of the members of the
                  identified group from the venire;
                  (2) that the prosecutor used a
                  disproportionate number of his or
                  her   peremptories    against   the
                  group; (3) that the prosecutor
                  failed to ask or propose questions
                  to the challenged jurors; (4) that
                  other   than    their   race,   the
                  challenged     jurors     are    as
                  heterogeneous as the community[.]

             [Pruitt, supra, 430 N.J. Super. at 270-71
             (first alteration in original) (quoting
             Osorio, supra, 199 N.J. at 504).]

       Applying those standards to the circumstances presented by

this case, we determined that a remand was required:

             [B]ecause there was only one qualified
             member of the cognizable group in the jury
             panel; the defendant was also a member of



                                        3                               A-5716-12T4
          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.

          [Id. at 264.]2

      Since the original trial judge was no longer sitting in the

Criminal Division, the remand was conducted by a second judge.

At the remand hearing, the second judge required the prosecutor

to   explain   his   reasons   for   striking   Juror   Thirteen.     The


2
  The "heterogeneous" standard warrants a brief clarification.
It is drawn from People v. Wheeler, 583 P.2d 748 (Cal. 1978),
where the court noted that in establishing a prima facie case, a
defendant may show that the prosecutor excused jurors who "share
only this one characteristic -- their membership in the group --
and that in all other respects they are as heterogeneous as the
community as a whole."      Id. at 764 (quoted in Gilmore, supra,
103   N.J.    at   536).     In   a   footnote,  illustrating   what
"heterogeneous" meant in that context, Wheeler explained: "For
example . . . it may be significant if the persons challenged,
although all black, include both men and women and are of a
variety    of    ages,   occupations,    and  social   or   economic
conditions."     Id. at 764 n.27.   Obviously, that example cannot
be applied where the prosecutor has only excused one minority
juror. However, it is still relevant whether that one juror has
characteristics in common with other jurors whom the prosecutor
did not excuse; whether the juror has characteristics similar to
other excused jurors; or whether the juror has a unique
characteristic, other than his or her race, that could warrant
the use of a peremptory challenge.            By analogy with the
employment discrimination cases cited in Gilmore and Osorio, it
is relevant whether the prosecutor treated similarly situated
minority and non-minority jurors the same or differently.        See
Gilmore, supra, 103 N.J. at 533-34 & n.7; Osorio, supra, 199
N.J. at 500-01.




                                     4                          A-5716-12T4
prosecutor stated that he asked that she be excused because she

worked     at     the        Woodbine    Developmental              Center     (Center),      a

residential facility for men with developmental disabilities.

The prosecutor recalled that, during voir dire, the juror told

the court that she took care of the men at the Center.                                      The

prosecutor told the second judge that he typically would use

peremptory challenges to excuse social workers, because he felt

they were too likely to be sympathetic to the accused, and he

perceived Juror Thirteen's job to be akin to that of a social

worker.         The prosecutor also stated that over the years his

office had prosecuted a number of both residents and employees

from the Center for drug offenses and other crimes, and as a

result, he always struck jurors who worked there.

      In    his    argument,      defense         counsel      did    not    compare     Juror

Thirteen to any of the other jurors whom the prosecutor excused

or   did   not    excuse.         In    other         words,   he    did     not   offer    any

specific        evidence        that     the          prosecutor's         explanation      was

unreasonable,          not    genuine,       or       a   pretext    for    discrimination.

Rather, he argued that, without the presence of Juror Thirteen,

the remand placed the defense in the unfair position of being

unable     to    ask    the    court    to     direct       further    questions       to   the

juror, designed to address the prosecutor's expressed concerns

about her possible bias.




                                                  5                                  A-5716-12T4
    In rejecting the defendant's position, the judge noted that

recalling Juror Thirteen was not within the scope of the remand.

He also evaluated the prosecutor's explanation and found that it

was neutral, plausible, case specific, and not "a ruse" to cover

up discrimination.   He therefore concluded that the defense had

not carried its burden of demonstrating a Gilmore violation.

                                II

    As the Court held in Osorio, once a defendant presents a

prima facie case that the prosecutor made discriminatory use of

a peremptory challenge, the prosecutor must present a clear and

specific explanation justifying the peremptory challenge "'on

the basis of concerns about situation-specific bias.'"     Osorio,

supra, 199 N.J. at 504 (quoting Gilmore, supra, 103 N.J. at

537).

         In gauging whether the party exercising the
         peremptory challenge has met its burden, the
         trial court must engage in a balancing
         process: it must determine whether the
         proffered   explanations    are   genuine   and
         reasonable   grounds    for    believing   that
         potential   jurors   might    have   situation-
         specific biases that would make excusing
         them reasonable and desirable, given the aim
         of empanelling a fair and impartial petit
         jury, or, on the other hand, sham excuses
         belatedly contrived to avoid admitting acts
         of group discrimination.

         [Id. at 504-05 (internal quotation marks
         omitted) (quoting Gilmore, supra, 103 N.J.
         at 537-38).]




                                6                          A-5716-12T4
      The trial court must make specific findings as to each

allegedly improper challenge, to determine whether the State's

explanation is relevant to the specific case, and whether there

is any evidence that the explanation is nonetheless apparently

pretextual.    For example, the court should consider whether the

prosecutor was even-handed in excusing non-minority jurors with

that same allegedly disqualifying characteristic.                             Id. at 506

(citing State v. Clark, 316 N.J. Super. 462, 473-74 (App. Div.

1998)).

      On this appeal, we review the trial court's decision for

abuse of discretion, so long as the judge properly applied the

legal standards set forth in Osorio.                      See id. at 509.        Because

the second judge had the opportunity to hear the prosecutor's

explanation    first-hand,      we    also          owe    some    deference     to    his

ability to gauge the credibility of the explanation.                           See State

v. Locurto, 157 N.J. 463, 474 (1999).

      Having reviewed the entire voir dire transcript, we find no

abuse of the judge's discretion in reaching his conclusion.                             We

agree with the second judge that the prosecutor's explanation

was   reasonable,     related        to    the       case,        and   not    obviously

pretextual.3     We    cannot        say       it    was    unreasonable        for    the


3
  Some of the trial judge's language was ill-chosen, for example,
in stating that the prosecutor's reason was not "ridiculous."
                                                      (continued)


                                           7                                     A-5716-12T4
prosecutor to excuse a juror whose job he perceived as being

akin to social work, and some of whose clients may have been

prosecuted    by   his   office.4   The     judge    did   not   specifically

compare Juror Thirteen to any other jurors, but on the other

hand, defense counsel did not argue that there were any other

allegedly similarly situated jurors whom the prosecutor did not

excuse.   Based on our own review of the record, we note that the

court excused for cause a juror who worked at a drug treatment

facility and who expressed "empathy" for defendant.

       On this appeal, defendant argues for the first time that

the prosecutor did not strike a number of jurors who themselves

had drug or alcohol problems in the past or who had relatives

with   drug   problems.     We   conclude    those    issues     were   waived,

because the judge had no opportunity to consider them and the



(continued)
That is not the standard for judging the legitimacy of the
prosecutor's stated reason.   See Clark, supra, 316 N.J. Super.
at 469-70. However, viewing that language in the context of the
judge's entire oral opinion we conclude he applied the correct
standard. Nonetheless, we have carefully scrutinized the record
ourselves and agree with his ultimate conclusion.
4
  There was no evidence as to the racial composition of the
workforce at the Center, and hence no basis to infer that a
prosecutor's invariable habit of striking Center employees from
juries was more likely to be a proxy for racial discrimination.
We note with disapproval defendant's citation of other facts
about the Center that are not in the record.       We decline to
consider factual assertions that are not of record.




                                     8                                  A-5716-12T4
prosecutor had no opportunity to respond to them.                       See State v.

Robinson,    200    N.J.   1,     20-22    (2009).           However,    even     if    we

consider    the     issues,       we     find     the    argument       unpersuasive.

Defendant was accused of being a drug dealer, and a prosecutor

could rationally believe that jurors who had drug problems in

the past, or had family members with drug problems, would not

necessarily be sympathetic to a drug dealer.                      Further, several

jurors    with    family   members        who   had     drug   problems     also       had

relatives who were police officers.

    Defendant also points out, for the first time on appeal,

that the prosecutor did not excuse a juror (Juror One) with past

experience caring for the elderly.                However, that juror had only

a few years as a direct caregiver before she was "promoted to

[working in] the office."              By contrast, Juror Thirteen had spent

twenty years caring for the residents at the Center.                      There also

was no evidence that any of the employees or clients of Juror

One's    elder    care   agency    had     been    criminally        prosecuted,       and

early in the voir dire she stated that she was related to a

police officer.

    In     thus    reviewing      the    evidence       de   novo,    because      these

issues were not presented to the trial court, we nonetheless

emphasize that it was defendant's burden to prove a                             Gilmore

violation by a preponderance of the evidence.                         Osorio, supra,




                                           9                                    A-5716-12T4
199 N.J. at 503-04.          This means that it was defendant's burden

to    specify    for   the   trial    court,   at   the   time   of   the    remand

hearing, which allegedly comparable jurors the prosecutor failed

to strike.       Further, as noted above, in failing to raise these

issues    during       the   remand    hearing,     defendant     deprived        the

prosecutor of the opportunity to explain why he did not strike

the     allegedly       comparable      jurors.     Defendant's       additional

appellate       arguments    are   without     sufficient   merit     to    warrant

discussion in a written opinion.             R. 2:11-3(e)(2).

       In summary, we find no abuse of discretion or other error

in the remand court's decision.                Thus, defendant's conviction

stands.

       Affirmed.




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