                                                     SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).

                                  State v. Amir A. Andrews (A-105-11) (069594)

Argued April 30, 2013 -- Decided October 28, 2013

CUFF, P.J.A.D. (temporarily assigned), writing for a unanimous Court.

        In this appeal, the Court revisits the bright-line rule established in State v. Gilmore, 103 N.J. 508 (1986) for
remedying the use of constitutionally impermissible peremptory challenges and considers whether trial judges
should be given more flexibility in fashioning a remedy.

          During jury selection in the criminal prosecution of defendant Amir A. Andrews, the prosecutor
complained that defendant was impermissibly striking jurors based on their race. The prosecutor stated that he did
not want to lose the whole panel and that he was satisfied with the panel, but felt compelled to object. The trial
court found that the State established a prima facie case of exclusion based on race and informed defense counsel
that he must articulate some rational, articulable reason for excluding jurors. When defense counsel could not
provide a sufficient reason for his subsequent use of a peremptory challenge, the judge seated the challenged juror.
The court completed jury selection, the trial proceeded, and the jury found defendant guilty. Defendant appealed,
arguing, among other things, that that the trial court resorted to an improper remedy for the unconstitutional
exclusion of a potential juror. The Appellate Division agreed, reversed the jury’s verdict and remanded for a new
trial. The panel determined that reseating the impermissibly struck juror was in direct contravention of Gilmore, in
which the Court determined that once a judge finds an impermissible basis for a peremptory challenge, the judge is
obligated to discharge the entire jury panel and begin the jury selection process anew. The Court granted the State’s
petition for certification. 210 N.J. 109 (2012).

HELD: Gilmore’s single, bright-line remedy has proven ineffective to fully and fairly respond to the use of
constitutionally impermissible peremptory challenges. The Court modifies Gilmore and hereby permits trial judges to
choose from a broader set of remedies to address the impermissible use of peremptory challenges.

1. In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court held that it is unconstitutional for a
prosecutor to peremptorily challenge potential jurors on account of their race. The Supreme Court gave state and
federal courts the discretion to fashion their own remedies for the use of constitutionally impermissible peremptory
challenges. In State v. Gilmore, 103 N.J. 508 (1986), the Court held that the New Jersey Constitution prohibits
peremptory challenges based on religious principles, race, color, ancestry, national origin, or sex. The Court recognized
that preventing discrimination during jury selection protects the impartiality of the jury’s deliberation and the right of
each citizen to serve on a jury. Informed by the remedy established in People v. Wheeler, 583 P.2d 748, 761 (Cal.
1978), the Gilmore Court elected to establish a single, bright-line remedy to redress the unconstitutional exclusion of a
potential juror. That remedy is to dismiss the already selected jurors, quash any remaining venire, and start the jury
selection process anew. (pp. 11-14)

2. Other jurisdictions and some commentators have observed that the Gilmore remedy tends to reward the offending
party’s bad conduct and wastes judicial resources. Two appellate decisions suggest that New Jersey’s adherence to a
single remedy has made it difficult for trial courts to fairly and effectively respond to Batson/Gilmore challenges. In
State v. Scott, 309 N.J. Super. 140 (App. Div. 1998), although defense counsel believed that the State was using
peremptory challenges to strike jurors based on race, because defense counsel did want to lose the already seated jurors
or have the remaining venire quashed, and the trial and appellate courts found that no other remedy was available
pursuant to Gilmore, the Gilmore rule ultimately permitted the taint of discrimination to permeate the jury. In State v.
Chevalier, 340 N.J. Super. 339 (App. Div. 2001), the trial court reseated three jurors that were improperly excluded
based on gender and the Appellate Division reversed, finding that the trial court’s remedy was improper because it
failed to follow the Gilmore rule. These cases demonstrate that dismissing the venire and restarting jury selection may,
in some instances, neither vindicate the rights of the wrongfully excluded jurors nor achieve a fair result. (pp. 14-18)
3. Virtually all other jurisdictions allow trial judges broader discretion in fashioning remedies for Batson violations
than permitted in New Jersey. For example, the New York Court of Appeals has held that trial judges can seat
improperly stricken jurors and force offending parties to forfeit their improperly executed peremptory challenges.
People v. Luciano, 890 N.E.2d 214 (N.Y. 2008). Moreover, Wheeler, the opinion that informed Gilmore’s single
remedy, has been modified by People v. Willis, 43 P.3d 130 (Cal. 2002). Willis discussed several permissibly remedies
to Batson violations, including assessment of sanctions against counsel, reseating improperly discharged jurors if they
are available to serve, and allowing the innocent party additional peremptory challenges if the improperly struck jurors
have left. Willis also emphasized that an alternate remedy must be preceded by the complaining party’s waiver of the
traditional remedy and identified entertaining challenges at sidebar as a means of minimizing the possibility of juror
bias. Furthermore, Gilmore’s single, bright-line remedy does not necessarily deter unconstitutional behavior.
Impermissible challenges may persist with a new jury panel. In addition, by starting the jury selection process anew,
the offending party will be placed in the same or better situation than before the improper conduct. (pp. 18-27)

4. A confluence of factors counsels departure from Gilmore’s single, bright-line remedy. Those factors include that
the Gilmore rule has impeded New Jersey courts from responding fairly and effectively to Batson/Gilmore
challenges, that most jurisdictions have adopted a more flexible approach, that the California decision that informed
Gilmore has been modified, and that the Gilmore remedy does not necessarily deter unconstitutional conduct. Trial
courts may now employ other remedies to address the use of constitutionally impermissible peremptory challenges.
A trial court may reseat the juror(s) with the consent of the aggrieved party and require the offending party to forfeit
his or her improper peremptory challenge(s). That remedy vindicates the rights of the improperly excluded juror,
deters misconduct, and sends a message that discriminatory conduct will not be tolerated. Before implementing that
remedy, however, the trial court should ensure that the juror is available for reseating, should determine whether any
inquiry of the juror is needed to ensure that he or she will be able to participate fairly, and should consider whether a
cautionary instruction should be given. The trial court may also require that juror challenges occur outside of the
jurors’ presence at the first suggestion of improper use of peremptory challenges. That remedy will avoid
prejudicing parties making challenges in open court without imposing the undue burden of requiring that all
challenges occur at sidebar. The trial court may also award additional peremptory challenges to the aggrieved party,
particularly when wrongfully dismissed jurors are no longer available. Although awarding more peremptory
challenges will not vindicate the rights of the wrongfully excluded jurors, it will disincentivize counsel’s improper
use of peremptory challenges. Finally, the Gilmore remedy remains available. (pp. 28-31)

5. The Court modifies Gilmore and hereby permit trial judges to choose from the following remedies to address
Batson/Gilmore violations on a case-by-case basis: dismissing the empaneled jury member(s) and the venire and
beginning jury selection anew; reseating the wrongfully excused juror(s); reseating the wrongfully excused juror(s)
and ordering forfeiture by the offending party of his or her improperly exercised peremptory challenge(s); permitting
trial courts to require challenges to prospective jurors outside the presence of the jury; granting additional
peremptory challenges to the aggrieved party; or a combination of these remedies as the individual case requires.
Every decision to invoke a remedy must assure a fair trial to all and elimination of the taint of discrimination.
Because the remedy chosen by the trial judge in this case was contrary to the governing law at the time, and the trial
judge failed to explain why the remedy would redress the impermissible challenge, defendant is entitled to a new
trial. (pp. 31-33)

         The judgment of the Appellate Division is AFFIRMED AS MODIFIED, and the matter is REMANDED
for a new trial.

     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and PATTERSON; and JUDGE
RODRÍGUEZ (temporarily assigned) join in JUDGE CUFF’s opinion.




                                                           2
                                        SUPREME COURT OF NEW JERSEY
                                         A-105 September Term 2011
                                                   069594

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

         v.

AMIR A. ANDREWS,

    Defendant-Respondent.


         Argued April 30, 2013 – Decided October 28, 2013

         On certification to the Superior Court,
         Appellate Division.

         Stephen A. Pogany, Special Deputy Attorney
         General Acting Assistant Prosecutor, argued
         the cause for appellant (Carolyn A. Murray,
         Acting Essex County Prosecutor, attorney).

         Lon Taylor, Assistant Deputy Public
         Defender, argued the cause for respondent
         (Joseph E. Krakora, Public Defender,
         attorney).

         Frank J. Ducoat, Deputy Attorney General,
         argued the cause for amicus curiae Attorney
         General of New Jersey (Jeffrey S. Chiesa,
         Attorney General, attorney).

    JUDGE CUFF (temporarily assigned) delivered the opinion of

the Court.

    In 1986, the United States Supreme Court held that a

prosecutor could not peremptorily challenge potential jurors

solely on account of their race.    Batson v. Kentucky, 476 U.S.

79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).   Subsequently, the

                                1
Court held that it is also unconstitutional for the defendant in

a criminal case to utilize peremptory challenges to remove

jurors on the basis of race, Georgia v. McCollum, 505 U.S. 42,

112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), or on the basis of

gender, J.E.B. v. Ala. ex rel. T.B., 511 U.S. 127, 114 S. Ct.

1419, 128 L. Ed. 2d 89 (1994).    The same prohibition applies to

all parties in civil cases.     Edmonson v. Leesville Concrete Co.,

500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991).

    In 1986, this Court determined that a prosecutor may not

exercise a peremptory challenge to remove members of a

cognizable group based on a presumed group bias.     State v.

Gilmore, 103 N.J. 508 (1986).    The prohibition also applies to

peremptory challenges by defendants, State v. Johnson, 325 N.J.

Super. 78 (App. Div. 1999), certif. denied, 163 N.J. 12 (2000),

and extends to all parties in civil cases, Russell v. Rutgers

Cmty. Health Plan, Inc., 280 N.J. Super. 445 (App. Div.),

certif. denied, 142 N.J. 452 (1995).     The remedy for such

conduct is to dismiss the already selected jurors, quash any

remaining venire, and start the jury selection process anew.

    Here, we revisit that single, bright-line remedy

established by Gilmore and determine that trial judges should be

given more flexibility in fashioning a remedy to address the

constitutionally impermissible use of peremptory challenges

condemned by the United States Supreme Court in Batson and by

                                  2
this Court in Gilmore.    In addressing a Batson/Gilmore

violation, trial judges may choose from a broader set of

remedies fashioned to respond to the circumstances of the

individual case.   The choice of remedy must be guided by the

twin goals of assuring a fair trial and redressing the

constitutionally impermissible behavior.

                                  I.

     On October 3, 2006, two women were shot at a local market

in Newark.   An Essex County grand jury returned an indictment

charging defendant Amir A. Andrews with nine offenses, including

conspiracy to commit attempted murder1 and aggravated assault,

two counts of attempted murder, two counts of second degree

aggravated assault, various weapons offenses, and witness

tampering.   Following trial, a jury found defendant guilty of

witness tampering but failed to reach a verdict on the remaining

counts.

     A second trial commenced several months later.     During jury

selection, defendant exercised a peremptory challenge to exclude

a white juror.   The prosecutor approached the bench and in a

sidebar conference with the trial judge and defense counsel

complained that defendant was impermissibly striking jurors

based on their race.     The prosecutor also stated that “the last


1
  The State later amended the indictment to conspiracy to commit
murder.
                                   3
time we picked a jury we had this issue.”     Noting that defendant

had struck seven white jurors and two African-American jurors,

the trial judge found that the State had established a prima

facie case of using peremptory challenges to excuse jurors based

on their race.   The prosecutor stated that he did not want to

“lose the whole panel,” that he was satisfied with the panel,

but felt compelled to object.

    Defendant’s attorney stated that there was a valid reason

for excusing the seven white jurors and started to explain why

he had excused a particular juror when the trial judge

interrupted.   The judge stated that he was satisfied that “there

is a pattern” and that the State established “a prima facie case

of exclusion based on race.”    He informed defense counsel that

he must articulate “some rational, articulable reason for

excluding those jurors that does not relate to their race.”

When defense counsel did not provide a reason other than “my

ambivalence” towards the last excused juror, the trial judge

asked the juror to remain.

    Defense counsel promptly objected.      He argued that the

reseated juror might be biased against defendant on account of

the failed attempt to exercise a peremptory challenge.     The

prosecutor proposed that the juror be excused, but defendant

must explain the reason for using any other peremptory

challenge.   The trial judge accepted that proposal.

                                 4
       Moments later, defendant exercised a peremptory challenge

to excuse a Hispanic juror.    At a sidebar conference, defense

counsel stated that defendant wanted to excuse the juror because

defendant did not believe the prospective juror would be fair

because of “what [the prospective juror] does in his spare

time.”    When defendant could not identify those spare time

activities, the trial judge stated that defendant could not

excuse the juror.    The judge seated the juror over the objection

of defense counsel and completed jury selection.

       Out of the presence of the jury, defendant explained his

reason for seeking to excuse the Hispanic juror.    He explained a

person who lived in the juror’s town “do[es]n’t know what goes

on.”    Defendant eventually accepted the decision to seat the

last juror he had sought to excuse but asked the trial judge to

question the juror whether the failed attempt to excuse him

would influence his evaluation of the evidence.    Explaining that

such an inquiry would draw attention to the issue, the trial

judge denied the request.

       The trial proceeded and on October 23, 2008, the jury found

defendant guilty of all charges: second degree conspiracy to

commit murder and aggravated assault, two counts of first degree

attempted murder, two counts of second degree aggravated

assault, third degree unlawful possession of a weapon (a

handgun), and two counts of second degree possession of a weapon

                                  5
for an unlawful purpose.     Defendant is serving an extended term

of life in prison subject to a No Early Release Act2 period of

parole ineligibility.

                                  II.

        Defendant appealed to the Appellate Division.     He argued

that the trial court improperly found that defendant had

exercised race-based peremptory challenges and erred by

requiring defendant to provide a race neutral reason for

excluding subsequent white jurors.      Further, defendant

maintained that the trial court resorted to a remedy that was

contrary to law.     Defendant also asserted that other trial

errors required a new trial and argued that the sentence was

excessive.

        In an unpublished opinion, the Appellate Division reversed

the jury’s verdict and remanded for a new trial.        The Appellate

Division determined that the trial court “neglected to make

adequate findings with respect to the defense attorney’s alleged

discriminatory use of peremptory challenges” and “failed to

conform to the then-extant Osorio[3] paradigm.”     The appellate

panel reasoned the trial court’s determination that the State

presented a prima facie case of exclusion based on race was

premature because the court did not allow defendant to present


2
     N.J.S.A. 2C:43-7.2.
3
    State v. Osorio, 199 N.J. 486 (2009).
                                   6
individual-by-individual, race-neutral justifications for all of

his peremptory challenges.     Addressing the remedy selected by

the trial court, the panel determined that reseating the

Hispanic juror was in direct contravention of this Court’s

holding in Gilmore, supra, 103 N.J. at 539, in which this Court

determined that once a judge finds an impermissible basis for a

peremptory challenge, the judge is obligated to discharge the

entire jury panel and begin the jury selection process anew.

The panel also commented that any alteration of the remedy for

the constitutionally impermissible use of peremptory challenges

was “best left” to the Supreme Court.     The Appellate Division

reversed defendant’s conviction and remanded for a new trial.

This Court granted the State’s petition for certification.     210

N.J. 109 (2012).

                                 III.

                                  A.

    The State contends that this Court should re-evaluate the

remedy set forth in Gilmore.    The State argues that the bright-

line rule set forth in Gilmore is too inflexible, improperly

rewards unconstitutional behavior, and wastes judicial

resources.   The State emphasizes that most jurisdictions have

adopted more flexible remedies for Batson violations and argues

that this Court should follow suit.     The State concedes that the

trial judge’s actions in this case contravene Gilmore’s bright-

                                   7
line rule, but contends that the judge’s response to the

discriminatory challenges –- acquiescing to the prosecutor’s

request to preserve the then-seated jurors but requiring

defendant to provide race-neutral reasons for excusing future

jurors –- was “far more reasonable under the circumstances and

best exemplified the reasoning behind the United States Supreme

Court’s decision in Batson.”

    The State also argues that the Gilmore remedy improperly

rewards unconstitutional behavior, as it allows offending

parties to manipulate proceedings to their advantage, while

wasting judicial resources and eroding public confidence in the

justice system.   The State also asserts that consent or waiver

from the aggrieved party should be a necessary prerequisite to

dismissing the entire venire.

                                B.

    The Attorney General, appearing as amicus curiae, similarly

argues that this Court should overrule Gilmore’s single remedy

and provide more flexibility to trial judges.   The Attorney

General notes that nearly all other jurisdictions have granted

trial judges discretion to remedy unconstitutional use of

peremptory challenges.   Furthermore, the Attorney General

contends that New Jersey courts have repeatedly recognized the

inherent difficulties of enforcing a single, bright-line remedy.

Accordingly, the Attorney General recommends alternative

                                 8
remedies that should be made available to trial courts in the

future, such as allowing improperly removed jurors to be

reseated and requiring offending parties to forfeit their

improperly used peremptory challenges; granting trial judges

discretion to require challenges to be made at sidebar to avoid

prejudicing parties making unsuccessful challenges in court; and

permitting courts to grant additional peremptory challenges to

aggrieved parties.

                               C.

    Defendant argues that neither the State nor the Attorney

General provided sufficient “special justification” to allow

this Court to depart from its binding precedent.   Defendant

argues that trial judges risk tainting the jury with bias toward

violating parties by reseating improperly excused jurors.

    Defendant acknowledges that safeguards discussed by the

Attorney General, such as instructing the jury after reseating

an improperly excused juror, could prevent bias, but he notes

that no such instruction was given in this case.   Defendant

asserts the possibility that the reseated juror exhibited animus

toward him is particularly likely in this case since the court

interjected after defendant excluded eight white jurors.

Accordingly, defendant contends, even if this Court adopted the

State’s and the Attorney General’s recommendations to expand

trial judges’ discretion in fashioning remedies to Batson

                                9
violations, the improperly excused juror should not have been

reseated in this particular case due to the likely bias.

    Assuming an alternative remedy is appropriate, defendant

asserts that two minimum requirements should be met: 1) notice

to the offending party of precisely what sanctions will be

imposed should the violative behavior continue; and 2) the

unequivocal waiver or consent to the use of an alternative

remedy by the aggrieved party.     Additionally, defendant urges

that even if the Gilmore remedy is expanded, courts should be

required to start anew, at least once, prior to employment of

alternative remedies.

    Defendant notes that the trial judge here gave no

forewarning of the “bizarre remedy” that defendant provide race-

neutral justification for subsequently excluding white jurors or

risk reseating improperly excluded jurors, and he argues that

such remedy was unduly punitive.      Defendant also notes that the

prosecutor did not unequivocally consent to the alternative

remedy in this case.

    Defendant next argues that even if this Court finds it

necessary to expand the remedies, it should affirm the Appellate

Division’s decision to grant a new trial based on the panel’s

determination that there was an insufficient basis to find a

prima facie case of discrimination.     Defendant argues that the

trial judge found a “pattern” of discrimination based solely on

                                 10
the number of white jurors that were excluded and that the judge

erred by not permitting defense counsel to provide race-neutral

reasons for any of the seven uncontested peremptory challenges

previously used to exclude white jurors.   As such, according to

defendant, this Court should at least affirm the portion of the

Appellate Division’s decision holding that the trial court erred

by failing to adhere to the Gilmore/Osorio three-step analysis

to identify Batson violations.4

                                  IV.

     In Batson, supra, the United States Supreme Court

determined that it is unconstitutional for a prosecutor to

exercise peremptory challenges in a manner that discriminates on

the basis of race “or on the assumption that black jurors as a

group will be unable impartially to consider the State’s case

against a black defendant.”   476 U.S. at 88, 106 S. Ct. at 1719,

90 L. Ed. 2d. at 83.

     In Gilmore, supra, this Court held that Article I,

paragraphs 5, 9, and 105 of the New Jersey Constitution prohibit


4
  The issue before this Court concerns the remedy for
Batson/Gilmore violations, not the three-step analysis to
identify whether a violation occurred. Osorio, supra, 199 N.J.
at 492-93.
5
  Article I, paragraph 5 provides that “[n]o person shall be
denied the enjoyment of any civil . . . right, nor be
discriminated against in the exercise of any civil . . . right,
. . . because of religious principles, race, color, ancestry or
national origin.” N.J. Const. art. I, ¶ 5. Paragraph 9 asserts
that “[t]he right to trial by jury shall remain inviolate . . .”
                                  11
prosecutors from exercising peremptory challenges to

discriminate against potential jurors on the basis of religious

principles, race, color, ancestry, national origin, or sex.      103

N.J. at 524.    We reasoned that “[the] right to a trial by an

impartial jury, in our heterogeneous society where a defendant’s

‘peers’ include members of many diverse groups, entails the

right to trial by a jury drawn from a representative cross-

section of the community.”    Ibid.   Adopting the California

Supreme Court’s justification for the representative cross-

section rule, as set forth in People v. Wheeler, we held that

the jury system seeks “‘to achieve an overall impartiality by

allowing the interaction of diverse beliefs and values the

jurors bring from their group experiences.’”     Gilmore, supra,

103 N.J. at 525 (quoting People v. Wheeler, 583 P.2d 748, 761

(Cal. 1978), overruled in part by People v. Willis, 43 P.3d 130

(Cal. 2002)).    Furthermore, we recognized that preventing race-

based discrimination during the jury selection process protects

not only the integrity and impartiality of the jury’s

deliberation but also the right of each citizen to serve on a

jury.   Ibid.   Justice Garibaldi stated, “Article I, paragraph 5

implicates not only the defendant’s civil rights but also those



N.J. Const. art. I, ¶ 9. Finally, paragraph 10 provides that
“[i]n all criminal prosecutions the accused shall have the right
to a speedy and public trial by an impartial jury.” N.J. Const.
art. I, ¶ 10.
                                 12
of citizens generally –- and, historically, one of the rights

and obligations of citizenship has been to participate in the

administration of justice by serving on grand and petit juries.”

Ibid.

     In Batson, supra, the Supreme Court did not prescribe a

remedy.   In fact, it gave state and federal courts the

discretion to fashion their own remedies:

          In light of the variety of jury selection
          practices followed in our state and federal
          trial courts, we make no attempt to instruct
          these courts how best to implement our
          holding today.      For the same reason, we
          express no view on whether it is more
          appropriate in a particular case . . . for
          the trial court to discharge the venire and
          select   a   new  jury    from   a panel   not
          previously associated with the case or to
          disallow the discriminatory challenges and
          resume    selection    with    the  improperly
          challenged jurors reinstated on the venire.

          [476 U.S. at 99 n.24, 106 S. Ct. at 1725
          n.24, 90 L. Ed. 2d. at 90 n.24. (internal
          citations omitted).]

State courts have interpreted this in different ways.6


6
  Some state courts have read this language to permit only the
two identified remedies and permit the trial judge to choose
between the two remedies. See, e.g., Coleman v. Hogan, 486
S.E.2d 548, 549-50 (Va. 1997) (holding either remedy is
appropriate depending on circumstances of each case); Ezell v.
State, 909 P.2d 68, 72 (Okla. Crim. App. 1995) (same). Some
state courts permit only one of the remedies identified in
Batson. See, e.g., State v. McCollum, 433 S.E.2d 144, 159 (N.C.
1993) (holding venire is discharged and jury selection resumes
with new panel when there is Batson violation), cert. denied,
512 U.S. 1254, 114 S. Ct. 2784, 129 L. Ed. 2d 895 (1994); State
v. Grim, 854 S.W.2d 403, 416 (Mo.) (directing improperly
                                13
    In Gilmore, this Court elected to establish a single,

bright-line remedy to redress improper exclusion of potential

jurors following a Batson challenge.   103 N.J. at 539.   Where an

aggrieved party demonstrates that opposing counsel improperly

exercised peremptory challenges on constitutionally

impermissible grounds of presumed group bias,

         the court must then conclude that the jury
         as constituted fails to comply with the
         representative cross-section requirement and
         it   must  dismiss   the  jurors   thus  far
         selected.     So too it must quash any
         remaining venire . . . .          Upon such
         dismissal a different venire shall be drawn
         and the jury selection process may begin
         anew.

         [Ibid. (quoting Wheeler, supra, 588 P.2d at
         765).]

Based on our research, it appears that New Jersey is the only

jurisdiction that adheres to the single remedy of striking the

venire and starting anew.




stricken juror should be reseated), cert. denied, 510 U.S. 997,
114 S. Ct. 562, 126 L. Ed. 2d 462 (1993).
     The remedy has been addressed by statute in Texas and court
rule in Minnesota. In Texas, the entire venire must be
discharged whenever the trial court finds that the prosecutor
improperly challenged jurors on the basis of race. Tex. Code
Crim. Proc. art. 35.261(b) (2013). The Minnesota Supreme Court
adopted a rule that permits the trial judge to reseat the
impermissibly challenged juror or to dismiss the venire and
resume with a new venire “based upon its determination of what
the interests of justice and a fair trial to all parties in the
case require.” Minn. R. Crim. P. 26.02, subd. (7)(4) (2013).


                               14
    This remedy is not free from criticism.     Other

jurisdictions and some commentators have observed that the

Gilmore remedy tends to reward bad conduct by the offending

party and contributes to a waste of judicial resources.     See,

e.g., Jason Mazzone, Batson at Twenty-Five: Perspectives on the

Landmark, Reflections on its Legacy, 97 Iowa L. Rev. 1613, 1619-

20 (2012); Emily C. Jeffcott and Mikal C. Watts, What’s Required

to Remedy Juror Discrimination?    A Brief Discussion on Batson

and its Available Remedies, 13 Scholar 615, 626 n.56 (2011).

Undoubtedly, excusing an entire jury panel and starting over

with a new panel takes additional time, which intrudes on the

ability of the trial court and counsel to address other matters.

A party’s reluctance to lose a satisfactorily composed panel may

inhibit an objection to constitutionally impermissible conduct

by another and permit a tainted panel to decide a case.     Two

appellate decisions suggest that our adherence to a single

remedy has made it difficult for trial courts in this state to

fairly and effectively respond to Batson/Gilmore challenges.

    In State v. Scott, 309 N.J. Super. 140, 148-49 (App. Div.)

certif. denied, 154 N.J. 610 (1998), defense counsel asked the

trial judge to compel the State to provide non-race-based

rationales for the State’s use of peremptory challenges striking

four African-American jurors from the venire.    Defense counsel

explained that he did not wish to make a formal Gilmore

                                  15
challenge because he did not want to risk losing the already

seated jurors, nor did he want the remaining venire quashed.

Id. at 149.   The trial court, however, denied the defendant’s

request, holding that the court could only compel the State to

disclose its reasoning for the contended exclusions after a

formal Gilmore challenge had been lodged, in which case the

defendant would be required to suffer the consequence of

starting jury selection anew if the State’s reasons were found

unsatisfactory.   Ibid.   On appeal, the Appellate Division

recognized that other jurisdictions endow judges with more

flexibility; however, the panel explained that it was limited by

this Court’s decision in Gilmore.     Id. at 151-52.

    In Scott, the inflexibility of the Gilmore rule ultimately

permitted the taint of discrimination to permeate the jury.

Because the complaining party, the defendant, did not want to

lose the jurors he had already chosen to try the case, he could

do nothing despite disputing the state’s discriminatory use of

peremptory challenges.    As discussed by the Attorney General in

this case, another remedy, such as reseating those found to have

been improperly struck, would have both vindicated the rights of

the potential juror and would have furthered defendant’s right

to be tried by a fair and impartial jury free of discriminatory

taint.



                                 16
    In State v. Chevalier, 340 N.J. Super. 339, 345 (App.

Div.), certif. denied, 170 N.J. 386 (2001), the trial court

found that defense counsel had improperly excluded jurors on the

basis of their gender.     At the defendant’s second trial,

following a mistrial in which the defendant had improperly used

peremptory challenges, the judge found that once again defense

counsel impermissibly excluded three jurors on the basis of

gender.   Ibid.     Although the trial court acknowledged the single

remedy available as set forth in Gilmore –- starting the jury

selection anew with a different venire –- the judge declined to

take that course.      Ibid.   Instead, he reseated the three

impermissibly excluded jurors.       Ibid.   The judge explained that

he imposed that remedy due to various time constraints and

provided an instruction to the jurors to disregard the fact that

he had reseated the three jurors when deciding the outcome of

the case.   Ibid.     Subsequently, the empanelled jury convicted

the defendant.      Id. at 346.   The Appellate Division reversed,

finding that, as in Scott, despite the fact that the majority of

other jurisdictions grant trial courts discretion to impose

remedies short of starting jury selection anew, the court was

bound by this Court’s holding in Gilmore.        Id. at 353.

    Chevalier, like Scott and this case, demonstrates that

reseating improperly stricken jurors may, in certain

circumstances, better address concerns of fairness and judicial

                                    17
economy.   Dismissing the entire venire and resuming jury

selection with an entirely new venire may, in some instances,

neither vindicate the rights of the wrongfully excluded jurors

nor achieve a fair result.    Instead, this may actually encourage

discriminatory behavior and do nothing to deter future abuses.

    Over time, various remedies have been identified and

utilized by courts in other jurisdictions.    In South Carolina, a

trial judge must first strike the venire and commence jury

selection with a new panel.   State v. Jones, 358 S.E.2d 701, 704

n.3 (S.C. 1987), overruled in part by State v. Adams, 470 S.E.2d

366 (S.C. 1996) (modifying third step of Batson methodology to

determine whether party has exercised peremptory challenges in

constitutionally impermissible manner in accordance with Purkett

v. Elem, 514 U.S. 765, 115 S. Ct. 1769, 131 L. Ed. 2d 834

(1995)).   If a party continues to improperly exercise peremptory

challenges, the trial court may reseat the improperly excluded

jurors if the circumstances of the case warrant this remedy.

State v. Franklin, 456 S.E.2d 357, 360 (S.C.), cert. denied, 516

U.S. 856, 116 S. Ct. 160, 133 L. Ed. 2d 103 (1995).

    Trial judges in New York and Pennsylvania may give

additional peremptory challenges to the party against whom the

peremptory challenges have been misused.    People v. Perez, 829

N.Y.S.2d 61, 64 (App. Div. 2007); People v. Chin, 771 N.Y.S.2d

158, 159 (App. Div.), appeal denied, 778 N.Y.S.2d 780 (2004);

                                 18
Commonwealth v. Hill, 727 A.2d 578 (Pa. Super. Ct.), appeal

denied, 747 A.2d 898 (1999).   This remedy is appropriate if the

wrongly removed juror has been excused and cannot be reseated.

A trial court may also order forfeiture of peremptory challenges

in addition to reseating the wrongfully excused juror.    People

v. Luciano, 890 N.E.2d 214, 216-19 (N.Y. 2008).    In

Massachusetts, a trial judge may simply overrule the

constitutionally impermissible challenge.    Commonwealth v.

Fruchtman, 633 N.E.2d 369, 371 (Mass.), cert. denied, 513 U.S.

951, 115 S. Ct. 366, 130 L. Ed. 2d 319 (1994).    Sanctions, such

as a monetary fine, have been imposed for repeated violations.

Willis, supra, 43 P.3d at 137.   Declaration of a mistrial may be

an appropriate remedy when the Batson violation is established

on a post-trial motion.   Minniefield v. State, 539 N.E.2d 464,

466 (Ind. 1989).   On the other hand, neither dismissing the

criminal charges, cf. Commonwealth v. Burke, 781 A.2d 1136, 1144

(Pa. 2001) (“dismissal of charges is an extreme sanction that

should be imposed sparingly or only in cases of blatant

prosecutorial misconduct”), nor permitting a white juror to be

struck as a remedy to the improper discharge of five black

jurors, State v. Hampton, 163 S.W.3d 903, 904 (Mo. 2005), were

permitted as appropriate remedies.    In addition, giving the

improperly excluded juror the choice of serving on the jury or



                                 19
being excused is not an acceptable remedy.       Woodson v. Porter

Brown Limestone Co., 916 S.W.2d 896, 905-06 (Tenn. 1996).

    The 2008 New York Court of Appeals decision in People v.

Luciano is particularly instructive on the principles that

should inform the application of an alternate remedy.        In

Luciano, supra, the court held it was appropriate to allow trial

judges to seat improperly stricken jurors and force offending

parties to forfeit their improperly executed peremptory

challenges.   890 N.E.2d at 217.    In doing so, the court

considered the harm to the rights of jurors by unconstitutional

exclusions and the harm to society “by impairing the integrity

of the criminal justice process.”       Id. at 218.   The court

determined that forfeiture furthers the prevention of such harms

through deterrence and reasoned that disallowing forfeiture of

challenges puts the offending party in the same position as

before the Batson violation.   Ibid.      Furthermore, the court held

that “[f]orfeiture promotes the spirit of Batson, signaling to

litigants –- and to the jury –- that discrimination will not be

tolerated.”   Id. at 219.

    Several federal appellate courts have similarly granted

trial judges more flexibility in fashioning remedies to Batson

challenges or recognized the discretion afforded by state courts

to trial judges fashioning an appropriate remedy.        See Rice v.

White, 660 F.3d 242, 258 (6th Cir. 2011) (recognizing judicial

                                   20
discretion, but disapproving subsequent selection of African-

American juror to cure taint caused by prior purposeful

discrimination), cert. denied, ___ U.S. ___, 132 S. Ct. 2751,

183 L. Ed. 2d 630 (2012); United States v. Walker, 490 F.3d

1282, 1294-95, 1295 n.14 (11th Cir. 2007) (approving

reinstatement of four improperly struck jurors and declining to

award additional peremptory challenges to replace “lost”

challenges), cert. denied, 552 U.S. 1257, 128 S. Ct. 1649, 170

L. Ed. 2d 354 (2008); United States v. Ramirez-Martinez, 273

F.3d 903, 910 (9th Cir. 2001) (approving reseating improperly

excused jurors and returning peremptory strikes to offending

party, finding remedy appropriate to redress nature and scope of

constitutional violation), cert. denied, 537 U.S. 930, 123 S.

Ct. 330, 154 L. Ed. 2d 226 (2002), overruled in part by United

States v. Lopez, 484 F.3d 1186 (9th Cir. 2007).

    These alternate remedies are not beyond criticism.     There

is always the possibility that a juror who is reseated after

being wrongfully excluded may harbor bias against the offending

party.   See, e.g., McCollum, supra, 433 S.E.2d at 159 (finding

it would be “extremely difficult” to ask improperly excluded

jurors to return to jury and render impartial verdict without

prejudice).   Other selected jurors may be aware of the

constitutionally impermissible challenges of one party and

develop a bias towards the offending party.   A vigilant trial

                                21
judge may obviate or minimize any possibility of taint by

conducting objections to a peremptory challenge at sidebar.

    In each situation in which a trial judge is permitted to

choose among several remedies to redress the use of peremptory

challenges in a constitutionally impermissible manner, the judge

must fashion a remedy that best suits the individual case.    In

every situation, the selected remedy must assure a jury free

from the taint of discrimination and a trial that is fair to all

parties.

                                 V.

    Both parties and the Attorney General urge the Court to re-

examine the use of the single, bright-line remedy announced in

Gilmore.   Each refers to the passage of time, the decision by

the Supreme Court of California to modify People v. Wheeler, and

the actions of many other state and federal courts to identify

alternate remedies and leave the choice of a remedy to the

discretion of the trial judge.   The relief requested, however,

requires this Court to alter binding precedent.

    We must acknowledge that Wheeler, supra, 585 P.2d 748, the

opinion that informed Gilmore, has been modified by Willis,

supra, 43 P.3d 130.   In Willis, the California Supreme Court

confronted facts similar to this case.   There, a trial judge

determined that the defendant had systematically used peremptory

challenges to exclude a specific class, namely white males, from

                                 22
the jury.     Id. at 133.    As in this case, with the State’s

consent, the judge did not dismiss the entire venire.         Id. at

133, 137.     Rather, the judge kept the seated jurors and imposed

a monetary sanction, which was lifted after trial, on defense

counsel.     Id. at 133.    The California Supreme Court

distinguished Wheeler, stating that Wheeler did not involve a

situation where the improper group bias was exhibited by the

same party seeking dismissal and that it left open the question

of possible alternative remedies.        Id. at 138.   The court

overruled Wheeler to the extent it seemingly permitted a single

remedy and upheld the remedy fashioned by the trial judge.         Id.

at 137-39.     Justice Chin, writing for a unanimous court,

justified granting judges more discretion to remedy Batson

violations and noted several permissible remedies:

             As the present case demonstrates, situations
             can arise in which the remedy of mistrial
             and dismissal of the venire accomplish
             nothing more than to reward improper voir
             dire challenges and postpone trial.      Under
             such circumstances and with the assent of
             the complaining party, the trial court
             should   have   the   discretion   to    issue
             appropriate   orders    short   of    outright
             dismissal of the remaining jury, including
             assessment of sanctions against counsel
             whose challenges exhibit group bias and
             reseating any improperly discharged jurors
             if they are available to serve.        In the
             event improperly challenged jurors have been
             discharged, some cases have suggested that
             the court might allow the innocent party
             additional peremptory challenges.


                                    23
           [Id. at 137.]

    The Willis court emphasized that resort to an alternate

remedy must be preceded by a waiver by the complaining party of

“the usual remedy of outright dismissal of the remaining

venire.”   Id. at 138.   In addition, the Willis court identified

entertaining all challenges, for cause or peremptory, at sidebar

as a means of preventing or minimizing taint of the venire.      Id.

at 137-38.    Post-Willis, judges in California have been allowed

to choose between dismissing the entire venire and reseating the

improperly discharged juror in certain situations.    See People

v. Mata, 302 P.3d 1039, 1040 (Cal. 2013); People v. Overby, 22

Cal. Rptr. 3d 233, 236-37 (Cal. Ct. App. 2004).

    We also acknowledge the discretion afforded to trial judges

in most jurisdictions to redress exclusion of potential jurors

through the constitutionally impermissible use of peremptory

challenges.   Virtually all states have granted trial judges

discretion to design remedies for Batson violations, even if the

choice of remedies is limited to striking the venire and

resuming jury selection with a new venire or reseating an

improperly stricken juror.

    Many states have also granted trial courts considerably

more leeway than the two remedies identified in Batson to

fashion remedies to those challenges.    See, e.g., Haschke v.

Uniflow Mfg. Co., 645 N.E.2d 392, 396 (Ill. App. Ct. 1994)

                                 24
(vesting trial court with discretion to fashion appropriate

remedy, including mistrial); Fruchtman, supra, 633 N.E.2d at 373

(permitting judge to overrule constitutionally impermissible

challenge rather than strike venire and recommence jury

selection); State v. Holloway, 719 N.E.2d 70, 74 (Ohio Ct. App.

1998) (suggesting allocation of additional peremptory challenge

to party is permissible but only if court finds other party used

challenges in constitutionally impermissible manner), appeal

denied, 704 N.E.2d 579 (Ohio 1999); see also State v. Mooney,

105 P.3d 149, 152-53 (Alaska Ct. App. 2005) (emphasizing need to

challenge improper peremptory challenges to preserve ability to

fashion an appropriate remedy); State v. Morales, 804 A.2d 902,

920 n.27 (Conn. App. Ct.) (declaring state law does not mandate

that court must begin jury selection process anew when Batson

challenge is sustained), appeal denied, 810 A.2d 270 (Conn.

2002); Epps v. United States, 683 A.2d 749, 754-55 (D.C. 1996)

(observing trial judge in unique position to determine

credibility of explanations for challenges and this finding is

one that appellate court cannot make); Holmes v. State, 543

S.E.2d 688, 690-91 (Ga. 2001) (recognizing constitutional and

statutory authority of trial court to reinstate one juror and

remove another); Foster v. State, 111 P.3d 1083, 1088-89 (Nev.

2005) (acknowledging that majority of courts have delegated

determination of appropriate remedy for Batson violation to

                               25
discretion of trial judge); Woodson, supra, 916 S.W.2d at 906-07

(recognizing trial court may decide what remedy to apply

depending on circumstances of case); Peetz v. State, 180 S.W.3d

755, 759-61 (Tex. App. 2005) (noting trial court may fashion an

appropriate remedy according to its discretion); State v. Velez,

140 P.3d 1219, 1233 (Utah 2006) (noting trial court can fashion

remedy if violation did occur); State v. Walker, 453 N.W.2d 127,

134-35 n.12 (Wis.) (declaring trial court should consider

factors in selecting whether proper remedy is to either

discharge venire and select new jury or reinstate juror), cert.

denied, 498 U.S. 962, 111 S. Ct. 397, 112 L. Ed. 2d 406 (1990),

abrogated in part by State v. Felix, 811 N.W.2d 775 (Wis. 2012).

    As with all discretionary decisions, this authority is not

unbounded.   In Jones v. State, the Maryland Supreme Court held

that judges have discretion to adopt a remedy but in doing so

should consider several factors in fashioning an appropriate

remedy, reasoning that:

         Among    the   circumstances   relevant   to
         determining what remedy is appropriate is
         the fact that “a criminal defendant [has]
         the constitutional right to have a jury
         whose members are selected pursuant to
         nondiscriminatory criteria . . . ‘and an
         individual juror has the right not to be
         excluded from a jury on account of race.’”
         Ellerbee[ v. State], 450 S.E.2d [443,] at
         448 [(Ga. Ct. App. 1994)] (quoting Lewis v.
         State, [] 424 S.E.2d 626, 628 ([Ga.] 1993)).
         This    need    to    consider   conflicting
         constitutional rights, as, for example the

                                26
            equal protection rights of the defendant and
            the excluded juror, Batson, [supra,] 476
            U.S. at 86-87, 106 S. Ct. at 1718, 90 L. Ed.
            2d at 81, militates in favor of permitting
            the trial court to tailor the remedy so as
            to protect the rights of all the parties
            concerned.

            [683 A.2d 520, 529 (Md. 1996).]

Among the remedies identified in Jones to address

constitutionally impermissible use of peremptory challenges are

reseating an improperly stricken juror and/or disallowing an

unconstitutional challenge, or striking the entire venire and

resuming jury selection with a new panel.       Id. at 528.

       We must also recognize that the single, bright-line remedy

set forth in Gilmore does not necessarily deter unconstitutional

behavior.   Batson’s purpose was to eliminate discrimination from

the jury selection process.     See Luciano, supra, 890 N.E.2d at

218.   As illustrated in Chevalier, supra, constitutionally

impermissible challenges may persist with a new panel or in

successive trials.    340 N.J. Super. at 345.     Further, by

starting the jury selection process anew, the offending party is

generally placed in the same position as if there had been no

Batson/Gilmore violation.     Ibid.    In fact, Gilmore’s remedy may

place an offending party in a better situation than before he

improperly exercised his peremptory challenges, effectively

rewarding unconstitutional behavior.      Moreover, mandating that

trial judges quash the entire venire and start jury selection

                                  27
anew every time a party violates Batson/Gilmore places an

unreasonable burden upon the judicial system and can easily

waste judicial resources.

    A confluence of factors counsels departure at this time

from the single, bright-line remedy imposed by Gilmore.     Those

factors include modification of the California decision that

informed our holding in Gilmore, and the approach adopted by

most jurisdictions.   Virtually all other jurisdictions allow

trial judges broader discretion in fashioning remedies for

Batson violations than permitted in New Jersey.   In addition,

the Gilmore single remedy has impeded New Jersey’s courts from

responding fairly and effectively to Batson challenges.

    Permitting additional remedies to address Batson/Gilmore

violations will permit the judicial system to respond more

effectively to the concerns implicated by discriminatory use of

peremptory challenges –- including making the prejudiced juror

whole, removing the taint of bias from the jury pool, avoiding

animus against the offending party, maintaining public

confidence in the justice system, deterring future impermissible

conduct, and preserving judicial resources.

    Among the remedies that a trial court may employ is

reseating the juror(s) with the consent of the aggrieved party

and forfeiture by the offending party of their improper

peremptory challenge(s).    Luciano, supra, 890 N.E.2d at 215; see

                                 28
also Willis, supra, 43 P.3d at 137; State v. Nelson, 85 So. 3d

21, 36 (La. 2012).   That remedy addresses the damage caused by

Batson/Gilmore violations in ways that the single, bright-line

Gilmore remedy often does not.   It vindicates the rights of the

juror as a victim of the unconstitutional conduct.   Also,

reseating jurors and forcing offending parties to forfeit their

peremptory challenge(s) sends an important message to the public

that our judicial system will not allow discriminatory conduct

in the courtroom.    Forfeiture should deter the unconstitutional

behavior condemned in Batson and Gilmore.

    Several factors, however, should be considered before

implementing the remedy of reseating wrongfully challenged

jurors because reseating a juror presents a unique set of

challenges.   First, before reseating an improperly excused

juror, the trial court should ensure that the juror is available

for reseating.   For example, in most instances, neither the

court nor the aggrieved party nor the excluded juror will

recognize discrimination against the first aggrieved juror

because it is almost impossible to make a prima facie case of

discrimination after just one use of a peremptory challenge to

strike a prospective juror.    In that case, the juror may be sent

home or exposed to media influences, making it impracticable to

reseat him or her.   Second, if the juror is available to be

reseated, the court should consult with counsel to determine

                                 29
whether any inquiry of the juror is appropriate and, if so, the

nature of the inquiry.   The judge must ensure that the reseated

juror will be able to participate fairly and impartially in the

trial.   The judge must also consider whether a cautionary

instruction should be given to the reseated juror and the panel

as a whole concerning the need not to hold any animus against

the party that unsuccessfully attempted to excuse that juror or

the party that resisted that effort.   Once again, any

instruction must be preceded by consultation with counsel.

    Another remedy within the discretion of the trial court is

to alter the procedure for exercising challenges so that the

challenges occur outside of the jurors’ presence at the first

suggestion of improper use of peremptory challenges.     Such a

modification to the jury selection process would avoid

prejudicing parties making unsuccessful challenges in open court

without imposing an undue burden by requiring that all

challenges occur at sidebar.   Furthermore, that alteration would

limit the extent to which the public confidence in the justice

system is undermined by Batson/Gilmore violations because

wrongfully excused jurors would not be aware of the grounds upon

which they were removed.

    Awarding additional peremptory challenges to the aggrieved

party upon a finding of improper use of peremptory challenges,

particularly when wrongfully dismissed jurors are no longer

                                30
available, would similarly alleviate the concerns discussed in

Batson.   Although awarding more peremptory challenges would not

vindicate the rights of the wrongfully excluded jurors, the

availability of such an option to trial courts would certainly

disincentivize counsel’s improper use of peremptory challenges.

     Finally, the remedy mandated by Gilmore, in which a trial

judge may, in his or her discretion, dismiss the empaneled jury

and begin the process anew upon a determination that counsel has

improperly excluded jurors, remains available.7

     The remedy or remedies selected to redress a Batson/Gilmore

violation must never be informed solely by the desire to

expedite a trial.   Rather, every decision to invoke a remedy

other than the single Gilmore remedy and the remedy actually

selected must assure a fair trial to all and elimination of the

taint of discrimination.

                                VI.

     The Court concludes that the various circumstances

identified and discussed in this opinion warrant modification of

the single, bright-line remedy set forth in Gilmore.   As

evidenced by the Appellate Division panels’ respective struggles

7
 Imposition of only a monetary sanction against the attorney for
the offending party does nothing to address the constitutionally
impermissible conduct. In rare circumstances it may be a
suitable supplemental remedy to address egregious conduct and
serve as a disincentive to future improper behavior. See also
R. 1:10-1. The decision to invoke this supplemental remedy
rests in the discretion of the trial judge.
                                31
in Scott and Chevalier, the bright-line remedy has proven

ineffective to fully and fairly respond to the wrong.

Additionally, the California Supreme Court’s departure from the

single remedy announced in Wheeler further supports the

proposition that a broader approach is necessary.    Most

importantly, the bright-line remedy does not necessarily deter

the unconstitutional behavior condemned in Batson and Gilmore.

    Accordingly, we modify Gilmore to the extent it imposed a

single remedy to respond to the constitutionally impermissible

uses of peremptory challenges by any party, and hereby permit

trial judges to choose from a broader set of remedies to address

Batson/Gilmore violations on a case-by-case basis.    Those

remedies include dismissing the empaneled jury member(s) and the

venire and beginning jury selection anew; reseating the

wrongfully excused juror(s); reseating the wrongfully excused

juror(s) and ordering forfeiture by the offending party of his

or her improperly exercised peremptory challenge(s); permitting

trial courts to require challenges to prospective jurors outside

the presence of the jury; granting additional peremptory

challenges to the aggrieved party, particularly when wrongfully

dismissed jurors are no longer available; or a combination of

these remedies as the individual case requires.




                               32
                               VII.

    In this case, the Appellate Division found the trial court

erred by finding a prima facie case of discrimination against

white jurors.   The panel noted that the prosecutor obliquely

raised his objection to defendant’s conduct and never

unequivocally asked the trial judge to invoke the Gilmore

remedy.   In addition, the Appellate Division correctly held that

the trial judge did not follow the three-part Osorio test before

finding a prima facie case of discrimination against white

jurors by defendant.   For those reasons alone, we affirm the

Appellate Division judgment reversing the judgment of conviction

and remanding the matter for a new trial.   We further hold that

the remedy chosen by the trial judge, although utilizing one of

the permissible remedies identified in this opinion, was

contrary to the governing law at the time of trial, and the

trial judge failed to explain why the remedy would redress the

impermissible challenge.   Under these circumstances, defendant

is entitled to a new trial.

                               VIII.

    The judgment of the Appellate Division is affirmed as

modified, and the matter is remanded for a new trial.

     CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
PATTERSON; and JUDGE RODRÍGUEZ (temporarily assigned) join in
JUDGE CUFF’s opinion.



                                33
               SUPREME COURT OF NEW JERSEY

NO.   A-105                                   SEPTEMBER TERM 2011

ON CERTIFICATION TO             Appellate Division, Superior Court




STATE OF NEW JERSEY,

      Plaintiff-Appellant,

              v.

AMIR A. ANDREWS,

      Defendant-Respondent.




DECIDED            October 28, 2013
                Chief Justice Rabner                        PRESIDING
OPINION BY           Judge Cuff (temporarily assigned)
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY


                                      AFFIRM AS
CHECKLIST
                                   MODIFIED/REMAND
CHIEF JUSTICE RABNER                      X
JUSTICE LaVECCHIA                         X
JUSTICE ALBIN                             X
JUSTICE PATTERSON                         X
JUDGE RODRÍGUEZ (t/a)                     X
JUDGE CUFF (t/a)                          X
TOTALS                                    6




                                                   1
