                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1375-11T4
                                                   A-2154-11T4

STATE OF NEW JERSEY,
                                           APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                                September 5, 2014
v.
                                              APPELLATE DIVISION

SALADIN THOMPSON,

     Defendant-Appellant.
_________________________________

           Submitted November 14, 2013 – Decided September 5, 2014

           Before    Judges    Sapp-Peterson,     Lihotz     and
           Maven.

           On appeal from the Superior Court of New
           Jersey, Law Division, Essex County, Docket
           No. 06-01-0162.

           Joseph E. Krakora, Public Defender, attorney
           for appellant (Steven M. Gilson, Designated
           Counsel, on the brief).

           Carolyn A. Murray, Acting Essex County
           Prosecutor, attorney for respondent (Sara A.
           Friedman, Special Deputy Attorney General/
           Acting Assistant Prosecutor, of counsel and
           on the brief).

     The opinion of the court was delivered by

SAPP-PETERSON, P.J.A.D.

     In   these   matters,    calendared   back-to-back    as   ordered   by

this court on August 8, 2012 and consolidated for purposes of
opinion, defendant appeals from the May 13, 2011 ruling in which

the   court    found    the     State    "did      not    engage     in    impermissible

discrimination in exercising its peremptory challenges."1                                The

determination was rendered following a remand proceeding ordered

by this court. Defendant also appeals from                     the sentence imposed

following the remand hearing and from the September 30, 2011

order denying his petition for post-conviction relief (PCR).

      Following our review, we are unable to determine from the

record of the remand proceeding whether the State's exercise of

seven    of    its    nine    peremptory         challenges     to   excuse     African-

Americans      was    the    product    of   impermissible         discrimination         as

opposed to situation-specific bias because the court failed to

engage   in    the    requisite    "third-step"           analysis        established     in

State v. Gilmore, 103 N.J. 508, 538 (1986).                          We conclude the

record    of    the    remand    hearing         was     too   deficient      to    enable

meaningful appellate review and a further remand would serve no

useful purpose.             Further, in light of this determination, we

deem it unnecessary to consider defendant's challenge to the




1
  The court entered one order, the September 30, 2011 order,
which it characterized as being "opened to the [c]ourt by way of
Remand from the Appellate Division from a denial of his petition
for Post-Conviction Relief[.]"    The remand from the Appellate
Division, however, was unrelated to defendant's PCR petition.
The appendix does not include a separate order from the May 13,
2011 remand hearing beyond the amended judgment of conviction.



                                             2                                     A-1375-11T4
sentence imposed on remand and his PCR petition.    Accordingly,

we vacate the judgment of conviction and remand for a new trial.

                                   I.

    The salient facts pertinent to this appeal are taken from

our previously unpublished opinion in State v. Thompson, No. A-

5366-06 (App. Div. March 25, 2010) (Thompson I):

              Defendant's convictions arose out of
         events unfolding during the late evening of
         July 8, 2005. The evidence before the jury
         disclosed that Andrews was on the porch of
         265 21st Street in Irvington at 10:30 p.m.
         when two African-American males arrived.
         One of the males was tall with a "big
         automatic gun, and the other was short with
         a "small revolver."    Andrews heard four or
         five shots and then realized that he had
         been shot.   The shorter man approached him
         and attempted to shoot him in the face, but
         shot the cap on his head instead. After his
         assailants left, Andrews heard more shooting
         further down the street.

              Officers   LaCosta    and   Love   were
         dispatched to a shots-fired call at Andrews'
         location just after 10:30 p.m.    They found
         Andrews lying down in the hallway, bleeding
         from the right shoulder.   Once an ambulance
         transported Andrews away from the scene,
         Officer LaCosta secured the crime scene and
         found four forty-caliber shell casings.

              Not far from the scene of Andrews'
         shooting that evening, in the 300 block of
         21st Street, Zhou and a female employee were
         working at the Lily Chinese Restaurant
         located at 353 21st Street. Green, who was
         a regular customer, entered the restaurant
         around 10:30 p.m. and ordered food.     Zhou
         testified that he was not that busy and
         recalls observing two men arrive shortly



                               3                         A-1375-11T4
after Green, with one of the men entering
the    restaurant  briefly  to   purchase
cigarettes while the other waited outside
the front door.

     As    the   customer     who    purchased
cigarettes was leaving the restaurant, Zhou
noticed him drawing his gun.    Once outside,
this customer began firing his gun.        The
male   who   had  accompanied   him   to   the
restaurant but remained outside also started
to fire shots from a gun.     Zhou heard four
gunshots and realized that he had been shot
in the leg. He also saw bloodstains on the
floor   of   the  restaurant.      Green   had
hurriedly left the restaurant.          Later,
police recovered blood evidence and bullets,
as well as spent shell casings outside of
the restaurant.   They also photographed the
wall damaged from bullet strikes inside of
the restaurant.

     After Zhou was treated for his leg
injury, he was eventually taken to the
police station, where police showed him a
twelve-person photo array.   Zhou identified
defendant as one of the shooters.       Zhou
testified that he was ninety-percent certain
that he had correctly identified the person
in the photograph as the shooter who had
remained outside, although he acknowledged
that in his grand jury testimony, he had
testified that he was unable to see the male
who had remained outside "very good."

     Defendant was apprehended later that
evening following a car pursuit and foot
pursuit.    As defendant was fleeing from
police, one officer observed defendant throw
a gun that he had been carrying during the
flight. Police recovered the weapon, and at
trial a ballistics expert testified that all
the   bullets  and   casings   the  officers
retrieved from the scenes of both shootings
had been fired from the weapon police
recovered from underneath the dumpster.



                      4                          A-1375-11T4
           Green died from his bullet wounds four days
           after the shootings.

           [Id. at slip op. 2-5.]

      The jury convicted defendant of first-degree conspiracy to

murder, N.J.S.A. 2C:5-2 and 2C:11-3(a); first-degree attempted

murder, N.J.S.A. 2C:5-1 and 2C:11-3(a); first-degree conspiracy

to   murder,   N.J.S.A.   2C:5-2   and    2C:11-3;   first-degree   murder,

N.J.S.A. 2C:11-3(a)(1) and (2); third-degree unlawful possession

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

weapon   for   an   unlawful   purpose,    N.J.S.A.   2C:39-4(a);    simple

assault,   N.J.S.A.    2C:12-1(a)(1);      and   fourth-degree   resisting

arrest, N.J.S.A. 2C:29-(a)(2).       At sentencing, the court imposed

an aggregate sixty-seven-year custodial sentence.

      Defendant appealed his conviction, raising the following

issues for our consideration:       the court failed to engage in the

three-step analysis mandated in Gilmore, 103 N.J. at 535-38,

notwithstanding that the prosecution exercised seven of its nine

peremptory challenges to exclude African-American jurors (Point

I); the court erred in its jury instruction on identification

(Point II); and the court subjected him to disparate treatment

when it imposed a custodial sentence greater than the sentences

received by his co-defendant (Point III).             Thompson I, supra,

slip op. at 5-6.




                                     5                              A-1375-11T4
     In that prior decision, we found no merit to defendant's

Point   II.         As    to    Point     I,    we     agreed       that    defendant     had

established that a cognizable class of prospective jurors had

been excused and remanded the matter

             to afford the prosecution the opportunity to
             articulate its reasons for excusing the
             seven African-American prospective jurors
             and for the court to then weigh those
             reasons against defendant's prima facie case
             in order to determine whether defendant has
             met his ultimate burden of proving by the
             preponderance of the evidence that the
             prosecution    engaged    in   impermissible
             discrimination in exercising its peremptory
             challenges.

             [Thompson I, supra, slip op. at 15-16.]

Finally,     as     to    Point    III,        we    agreed     the    court     failed    to

articulate     any       applicable     aggravating           and     mitigating     factors

prior to imposing defendant's sentence, which we found required

a   remand     to    address       that        issue     as    well,       if   defendant's

conviction        otherwise        stood.            The      Supreme       Court     denied

defendant's petition for certification.                       State v. Thompson,          203

N.J. 439 (2010).

     In January 2011, prior to the remand hearing, defendant

filed   a     pro    se     PCR    petition.           The    PCR     petition      was   not

adjudicated       until        September       2011,     several       months    following

completion of the remand proceedings.




                                                6                                   A-1375-11T4
    On May 13, 2011, the court conducted the remand hearing.

Defendant    was    represented      by   new     counsel    because         his    former

trial counsel was practicing law in Colorado.                         Because defense

counsel was new to the case, had only the trial transcripts of

the jury selection, and because the trial had taken place three

years    earlier,        defense    counsel       requested       copies           of    the

prosecutor's       notes    made   contemporaneously         at       trial    with      the

prosecutor's exercise of the State's peremptory challenges.                               In

support of this request, defense counsel relied upon State v.

Osorio, 199 N.J. 486 (2009).              The State objected, arguing that

Osorio does not support the proposition that the notes were

discoverable       and   maintaining      that    the    notes        were    privileged

attorney    work    product.       The    court    offered       to    turn    over      its

notes, which it indicated were limited, for the most part, to

gender   and   race,       but   disagreed    that      Osorio    mandates         that     a

prosecutor's notes taken during jury selection be turned over

where there is a challenge to the prosecution's exercise of

peremptory challenges.           The court agreed the notes were attorney

work product and denied the application.

    The prosecutor           at the remand hearing, who was the same

prosecutor who tried the case against defendant on behalf of the

State, then proceeded to provide the court with explanations for

the State's exercise of peremptory challenges to excuse seven




                                          7                                        A-1375-11T4
prospective African-American jurors.                      She first addressed the

peremptory excusal of Juror B.2                Although the prosecutor did not

explain why she excused this juror, she represented that Juror B

initially     asked    to   be   excused       from   the    jury    because    of    her

probationary work status and had expressed concern that serving

on the jury may affect her employment.                    The juror also indicated

that she was familiar with the address where the crime occurred.

The juror further indicated she had a family member accused of

drug    possession.          Finally,      Juror      B     stated     she   had     been

dissatisfied with the prosecution in a prior case in which a

member of her family had been killed.

       Next, the prosecutor stated she excused Juror G because the

juror indicated her boyfriend, who is also the father of her

child, had been convicted of a weapons offense and was currently

on probation.         Although the juror expressed that she believed

the outcome was fair, the prosecutor told the court she excused

Juror G because the boyfriend's prosecution was undertaken by

the    same   office   now    prosecuting        defendant,      the    Essex      County

Prosecutor's Office.

       The next juror, Juror Gr, stated she had been the victim of

domestic violence, which had been prosecuted by the Essex County


2
  To protect the privacy of the jurors at issue, we utilize
initials.



                                           8                                    A-1375-11T4
Prosecutor's Office and ultimately dismissed.                   She also reported

that, as part of her personal life, she hosted what she referred

to as "passion parties," where she presented "adult" items.                           The

prosecutor stated "the aggregate effect of those statements on

[Juror Gr's] part cause[d] me to have a reaction that she would

not be a juror who would be equally open to the State's evidence

in this murder case."            As such, that juror was excused.

      The    prosecutor       discussed        the   exercise    of     the    State's

peremptory challenge to excuse Juror H, whose brother had been

convicted      of    murdering     his   wife.       Although   subpoenaed        as    a

witness, the juror did not testify in that trial.                       In light of

the juror's brother's status and the juror's close connection to

a   homicide    as    a    subpoenaed     witness,     the    prosecutor      did     not

"think that [the juror] would be an appropriate juror able to be

single-mindedly focused on the evidence in this case."

      As for Juror Go, the prosecutor explained the State elected

to excuse him because he had been prosecuted in connection with

a   case    where    his   son    was    reportedly    the    victim.         Juror    Go

indicated the case was "'thrown out.'"                       Because he had been

accused and prosecuted by the Essex County Prosecutor's Office,

the prosecutor believed he too would be unable to "focus his

attention single-mindedly on the facts that would be before this

jury."




                                           9                                   A-1375-11T4
      Juror Mk expressed that she was very religious, read daily

meditations and indicated that it was very important for her to

make meetings.    The prosecutor explained to the court that she

did not know the significance of the meetings and, therefore,

attempted follow-up questioning, which the court denied.                In

view of the very religious nature of her answers, the prosecutor

expressed that the "State chose to peremptorily excuse her from

the case because we felt that she might, in fact, be disturbed

in sitting in judgment upon another individual, particularly in

something as serious as a murder case."

      Finally, the prosecutor explained that the State used a

peremptory challenge to excuse Juror Jn.          During the voir dire,

Juror Jn stated that neither he nor any member of his family had

ever been charged with an offense.       The prosecutor, however, was

aware that Juror Jn was a defendant in a matter pending in Essex

County.   The prosecutor expressed that she believed Juror Jn's

response was deliberately misleading.          She therefore decided to

peremptorily excuse him.

      The prosecutor concluded her presentation by noting that

the   "final   composition   of   the   jury   included   five   African-

American jurors and nine who were not African-American," but

whom the prosecutor believed could be visually identified as

"white individuals, Asian or Hispanic."            In response to the




                                   10                            A-1375-11T4
prosecutor's presentation, defense counsel agreed that "much of

the information that the Prosecutor has indicated today is, of

course, and naturally available on . . . the transcript of the

jury selection."           Nonetheless, he maintained that without the

prosecutor's notes, to which the prosecutor made reference — at

least three times – in giving her explanations, he was at a

disadvantage because he had "no means whatsoever of rebutting or

responding to what she said."

       The     trial      court     denied         defense     counsel's        renewed

application         for   the     prosecutor's         notes   for        the   reasons

previously expressed, namely, the notes were subject to the work

product privilege.             The court then found defendant failed to

meet    his        ultimate     burden        of     establishing     impermissible

discrimination in the jury selection, because the defense had no

other evidence to present to the court beyond "the use of seven

-- almost 80% of the challenges against African Americans."                           The

court credited the explanations provided by the prosecutor and

found no basis to set aside defendant's conviction and to order

a new trial.

       After reaching this decision, the court then proceeded to

address      the    separate    point    of    our    remand   to    articulate       the

aggravating         and   mitigating     factors       influencing        the   court's

sentencing         decision.      The    court       identified     the    aggravating




                                          11                                    A-1375-11T4
factors, found no mitigating factors and re-sentenced defendant,

imposing the sentence it originally imposed.

      In August 2011, defendant filed an amended verified PCR

petition     and    an    accompanying      brief     filed        on    his    behalf    by

assigned counsel.          In seeking PCR, defendant urged his petition

was   not    procedurally        barred     and     that      he    had     been    denied

effective assistance of counsel.                Specifically, he claimed trial

counsel coerced him into not testifying, failed to conduct an

adequate pre-trial investigation, failed to mount a meaningful

defense,      and     failed     to     seek    a     Wade3     hearing         concerning

identification.          Defendant additionally alleged the cumulative

errors of defense counsel had the overall impact of denying him

effective assistance of counsel.

      The court conducted oral argument on the PCR application on

September     30,     2011,      and     upon   its     conclusion,            denied    the

petition.       The      court   concluded      defendant's         claims        were   too

vague,      conclusory,       and      speculative.           The       present    appeals

followed.

      On direct appeal, defendant raises the following points:

             POINT I

             DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE
             TO   THE   PROSECUTOR'S   IMPERMISSIBLE  AND

3
  United States v. Wade, 388 U.S. 218, 230, 87 S. Ct. 1926, 1932,
18 L. Ed. 2d 1149, 1158 (1967).



                                           12                                      A-1375-11T4
         UNCONSTITUTIONAL PEREMPTORY JUROR CHALLENGES
         AND/OR   THE   INSUFFICIENT   RECORD   BELOW
         REGARDING THE PROSECUTOR'S PEREMPTORY JUROR
         CHALLENGES.

         POINT II

         DEFENDANT MUST BE RESENTENCED                  BECAUSE THE
         TRIAL   COURT    DOUBLE-COUNTED                 AGGRAVATING
         FACTORS (NOT RAISED BELOW).

    Defendant's separate PCR appeal raises one point:

         THIS   MATTER   MUST   BE  REMANDED  FOR   AN
         EVIDENTIARY    HEARING    BECAUSE   DEFENDANT
         ESTABLISHED A PRIMA FACIE CASE OF TRIAL
         COUNSEL'S INEFFECTIVENESS.

                 A.   TRIAL COUNSEL FAILED TO CONDUCT AN
                 ADEQUATE   INVESTIGATION   AND   LOCATE
                 PROSPECTIVE WITNESSES

                 B.   TRIAL COUNSEL           COERCED      DEFENDANT
                 NOT TO TESTIFY

                                       II.

    In challenging the State's allegedly impermissible use of

preemptory    challenges,    defendant       contends     the    court   erred   in

determining    the      prosecutor's        notes   were    not     subject      to

disclosure    because    they   were   protected     by    the    attorney    work

product privilege.        The trial judge indicated that it did not

read Osorio as requiring that such notes be turned over.




                                       13                                 A-1375-11T4
    Rule     3:13-3(d),4        entitled        "Documents       Not     Subject      to

Discovery[,]"     states      that        "[t]his      rule   does      not    require

discovery   of    a   party's      work     product     consisting       of    internal

reports,    memoranda    or     documents       made    by    that     party    or   his

attorney    or   agents,      in    connection         with   the      investigation,

prosecution or defense of the matter[.]"                  "[P]rivileges stand in

what we have declared to be a 'disfavored status' because they

have an effect on the truth-seeking function."                       State v. Mauti,

208 N.J. 519, 531 (2012) (citing                Payton v. N.J. Turnpike, 148

N.J. 524, 539 (1997)).             Thus, "[t]he work product privilege is

not absolute and can be disregarded 'upon a showing that the

party seeking discovery has substantial need of the materials in

the preparation of the case and is unable without undue hardship

to obtain the substantial equivalent of the materials by other

means.'"    Rivard v. Am. Home Prods., Inc., 391 N.J. Super. 129,

155 (App. Div. 2007) (quoting R. 4:10-2(c)).

    No reported New Jersey decision has addressed the limits of

attorney work product as it pertains to counsel's notes created

during   jury    selection.         The    Georgia     Supreme      Court,     however,

found that a trial court properly denied defendant's motion for

an in-camera review of the state's jury selection notes because

4
  In effect at the time of the remand hearing was Rule 3:13-3(e).
Rule amendments in 2014 re-designated this rule as Rule 3:13-
3(d).



                                           14                                  A-1375-11T4
attorney work product does not become discoverable where there

is no exculpatory information and the defense might find the

information strategically helpful.              Foster v. State, 374 S.E. 2d

188, 192 (Ga. 1988), cert. denied, 490 U.S. 1085, 109 S. Ct.

2110, 104 L. Ed. 2d 671 (1989).

       Our Supreme Court, in Osorio, while summarizing the factual

record presented to the trial court in the remand proceeding,

noted that the "trial court accepted without qualification the

State's explanations" for excusing prospective African-American

and    Hispanic     jurors.       Osorio,       supra,    199     N.J.     at     496.

Ultimately, the Court concluded that, the limited record, the

passage of more than seven years since jury selection, "the

absence   of   searching      judicial    review"      were   all   factors       that

militated against any remedy other than vacating the defendant's

conviction and remanding the matter for a new trial.                        Id. at

509.

       Here,   at   the   inception      of    the   remand     hearing,    defense

counsel informed the court that defendant's prior trial counsel

was practicing law in Colorado.                The judge, in responding to

defense    counsel's       request       for     the     prosecutor's           notes,

acknowledged that his own notes were "limited to -- in most

cases to merely an indication as to what peremptory challenges

were exercised and the male [sic] -- and the sex and race of the




                                         15                                A-1375-11T4
person who was excused.            I didn't at all indicate whether or not

there was some other basis that the court could observe."

    As    in    Osorio,      by    the    time       of    the     remand    hearing,      a

substantial period of time (here four years) had passed since

the trial, and a different attorney was appearing on behalf of

defendant.      See Osorio, supra, 199 N.J. at 496 n.3.                       Therefore,

a close and timely examination of the reasons proffered for

utilizing      seven   of       nine     peremptory         challenges       to     excuse

prospective     African-American          jurors          had    not   occurred.         In

addition, the trial court here, as it did in Osorio, "accepted

without qualification the State's explanations."                       Id. at 496.

    The     responses      to     the    relevant         questions,    by    the    seven

jurors peremptorily excused, are largely borne out by the trial

transcript,     with   the      exception       of    Juror       H.    In    the    brief

submitted in support of this appeal, defendant contends "the

record below is devoid as to [Juror H's] brother having been

tried and convicted for 'homicide[.]'"                          While the record does

not state the nature of the conviction, the record does reflect

that Juror H's brother was prosecuted for some offense involving

his wife, Juror H had been subpoenaed as a witness.                          He believed

the outcome was fair for "what he did."

    Notwithstanding the fact that the transcripts of the jury

selection      confirmed     the       prosecutor         accurately     reported       the




                                           16                                     A-1375-11T4
responses      to     the   voir     dire      questions          by   the    seven    African-

American jurors who were peremptorily excused, defense counsel,

at the remand hearing, referenced that defendant remained at a

"substantial          disadvantage"           because       without      the       prosecutor's

notes, the defense had "no means whatsoever of rebutting or

responding."          The prosecutor explained that her decisions as to

each    of    the     seven       African-Americans            were     informed      by    their

situation-specific responses to the voir dire questions.

       Insomuch as reversal is required for other reasons, we need

not resolve whether the State may successfully assert attorney

work    product        privilege         to    prevent         disclosure      of     its    jury

selection notes, where a defendant has established a prima facie

showing of purposeful group discrimination in the jury selection

process.      We agree, however, generally, there would be no need

for such disclosure where a claim of group bias is addressed

during the course of jury selection.                              See Osorio, supra, 199

N.J. at 507-08 (stating because a clear pattern of group bias

has    been    established          with      the       State's    first      six    peremptory

challenges, it "behooved both the State and the trial court to

[have    made]      make      a    contemporaneous             record    of    the    whys    and

wherefores       on    which       the     State's        peremptory         challenges      were

based").         Moreover,         the     demand        for    the     prosecutor's        notes

presumes      that     in   addition          to    making      notes    of    a    prospective




                                                   17                                  A-1375-11T4
juror's responses to questions, a prosecutor routinely will also

take the time to record his or her mental impressions about the

response.      We   suspect   this    is       not    a    likely   scenario,    which

illustrates the importance of the third step under the Gilmore

analysis.5    Gilmore, supra, 103 N.J. at 539.

      In    Gilmore,   the    Court       set        forth    the   procedures      for

addressing a challenge to jury selection based upon group bias.

Gilmore, supra, 103 N.J. at 535-38.                  The Court instructed that a

defendant    must   first     make    a    prima          facie   showing    that   the

prosecution    exercised      its    peremptory            challenges   to    exclude

jurors on constitutionally-impermissible grounds.                       Id. at 535-

36.   Second, if a defendant is able to satisfy this threshold

showing, the prosecution then must present evidence that the

challenged peremptory excusals were justified on the basis of

"situation specific bias" rather than impermissible group bias.


5
  Nonetheless, in unique circumstances, where there has been a
considerable passage of time, a new defense attorney, and an
apparent absence of notes from the original trial counsel, a
trial court may elect to conduct an in-camera review of the
prosecutor's notes, if they exist, to determine whether the
notes reflect the prosecution's representations. See Gaines v.
State, 811 S.W.2d 245, 250 (Tex. Crim. App. 1991) (noting that
the judge conducted an in-camera review where the prosecution
objected to the production of its jury selection notes); U.S. v.
Barnette, 644 F.3d 192, 199 (4th Cir. 2011) (discussing a remand
hearing where the prosecutor's juror questionnaires were
subjected to an in-camera review to determine the use of
unconstitutional peremptory challenges).




                                          18                                  A-1375-11T4
Id. at 537.       Third, if the prosecution provides such evidence of

permissible       situation-specific            bias,       then      the    court     must

evaluate the defendant's prima facie case of impermissible bias

against    the     prosecution's         rebuttal          evidence     of    situation-

specific bias to determine whether the defendant has satisfied

his or her "ultimate burden of proving, by a preponderance of

the    evidence    that    the    prosecution         exercised        its    peremptory

challenges on constitutionally-impermissible grounds of presumed

group bias."      Id. at 539.

       It is this third critical step in the Gilmore analysis that

was not advanced by the court in the remand hearing.                           The Court

in     Osorio,    supra,     199        N.J.     at     506,       noted      that     "the

considerations      relevant       to    this    final        step    of     the    Gilmore

analysis were comprehensively summarized in [Clark, supra, 316

N.J.    Super.     at     473-74],"       and        the      Court     adopted       those

considerations,         stating,        "[w]e     cannot           improve     on      that

summary[.]"       Osorio, supra, 199 N.J. at 506.                       Thus, a trial

court's    analysis       under   the     third       step     must    include:          (1)

separate findings [by the court] as to the proffered reasons for

peremptorily excusing the juror "'with respect to each disputed

challenge'"; (2) whether the proffered reason has been evenly

applied;    the     overall       pattern       of      the     use     of    peremptory

challenges, notwithstanding that the proffered explanation as to




                                          19                                       A-1375-11T4
each    individual      juror        excused,      may       appear     "'genuine       and

reasonable'"; and (3) the "'composition of the jury ultimately

selected to try the case.'"                 Osorio, supra, 199 N.J. at 506-07

(quoting Clark, supra, 316 N.J. Super. at 473-74).

       Here, the trial court did not include in its findings any

of the third-step considerations outlined in Clark, supra, 316

N.J.    Super.   at    473-74.             Instead,     the     court    credited       the

prosecutor's explanation wholesale and then mistakenly observed

that defense counsel made "a point of saying -- that he could

see those things as grounds just by reading the transcript."

Defense   counsel      made     no    such       concession.          Rather,    defense

counsel   acknowledged        that    "much       of   the     information      that    the

Prosecutor    has     indicated      today       is,   of    course,    and     naturally

available on the . . . transcript of the jury selection.                                  I

reviewed those . . .          transcripts.             I noted many of the things

that   the    Prosecutor      has     indicated         here    today."         (Emphasis

added).      Defense counsel followed that statement by indicating

to the court that his client was nonetheless at a "substantial

disadvantage     now    because       so    much   time      has    passed"     and    then

renewed   his    request      for     the    prosecutor's          notes,   once      again

urging that without the notes "we have no means whatsoever of

rebutting or responding to what [the prosecutor] said."




                                            20                                   A-1375-11T4
       Perhaps the court's omission of the necessary third-step

analysis      was     influenced       by    its   mistaken      characterization           of

defense counsel's comments about what was contained in the trial

transcript.         In any event, the absence of a Gilmore third-step

analysis       left      open   the     question      whether         the    prosecutor's

"nondiscriminatory reason for exercising a peremptory challenge

which       appear[ed]       genuine    and    reasonable        on    its    face      [was]

suspect if the only prospective jurors with that characteristic

who the [party exercising the peremptory challenge] has excused

are members of a cognizable group."                   See Osorio, supra, 199 N.J.

at 506 (quoting Clark, supra, 316 N.J. Super. at 474).

       The transcript of the jury selection process suggests that

the   State's       proffered     explanations        may   not       have    been    evenly

applied.          For    example,      the    prosecutor      stated         Juror     B   was

excused, in part, because she was familiar with the address

where the crime occurred, that a family member had been accused

of drug possession, and she expressed dissatisfaction with the

prosecution         in   a   criminal       case   involving      a     family       member.

However, Juror Ch stated she has a family member who was accused

of rape and drug possession, she, personally, had been held up

twice,      and   remained      dissatisfied        that    no    one       was   arrested.

Juror Ch, however, was not excused.                    Her race is not disclosed

in    the    record      because,     other    than   those      jurors      peremptorily




                                              21                                     A-1375-11T4
excused by both sides, as reflected in the trial judge's notes,

the record is devoid of the race of the prospective jurors other

than the race of the jurors ultimately seated, as represented by

the prosecutor during the remand hearing.

    It     is     also     important        to    note        that     the        record,

unfortunately,     is     silent   with     respect      to    responses      by     many

prospective jurors on key questions, such as whether they were

familiar with the crime area, and whether they or members of

their    family    had    been     crime    victims.           A     note    from     the

transcriber,      which    appears    on    the   cover       page     of    the     jury

selection transcript states:               "Due to the positioning of the

microphones at sidebar and in the jury box, some portions of the

transcript were difficult to hear."

    In short, as in Osorio, the "scant record before us" in

this case "does not instill confidence that the trial [judge]

properly exercised [his] discretion in assessing the propriety

of the contested peremptory challenges."                      Osorio, supra, 199

N.J. at 509.      The failure to engage in the requisite third-step

analysis mandated by the Supreme Court necessitates reversal.

    At the time of our original remand in Thompson I, more than

three    years    had     passed    since    defendant's           trial     in     2007.

Thompson I, supra, slip op. at 14.                More than seven years has

now elapsed.       In the remand hearing, the judge stated that he




                                       22                                     A-1375-11T4
had "some vague recollection of the incidents as described."                              As

noted earlier, the transcript of the proceedings is silent on

juror responses to key questions and is limited as to the racial

background of jurors, other than those peremptorily excused.                              We

acknowledge the prosecutor represented, without challenge, the

jury ultimately empaneled included "five African-American jurors

and nine jurors who were not African-American."                            In a proper

third-step analysis, the final composition of the empaneled jury

is highly probative of the "ultimate question whether the . . .

proffered   nondiscriminatory           reasons      for     exercising      peremptory

challenges are genuine and reasonable."                    Osorio, supra, 199 N.J.

at 506-07 (quoting Clark, supra, 316 N.J. Super. at 474).                               That

composition is, however, not dispositive.

      "Given     the    precious      constitutional         rights    at     stake,       we

eschew    any    [further]         intermediate      measures"        with    a     second

remand.         Ibid.         We   therefore     are       constrained       to     vacate

defendant's conviction and remand for a new trial.

      One final aspect of the record bears mentioning.                              It was

represented to the court that defendant's former trial counsel

was   practicing        law   in    Colorado    at     the    time    of     the    remand

hearing, which was conducted several months after our decision

in Thompson I.          A defendant challenging the State's exercise of

its      peremptory           challenges        based        upon       impermissible




                                           23                                      A-1375-11T4
discrimination, through the appeal process, must be cognizant

that the time between conviction and exhaustion of the appellate

process may take years; and, therefore, it is foreseeable that a

defendant's trial counsel in a remand proceeding may change.

Nonetheless,      the    defendant     bears       the   ultimate       burden,        by    a

preponderance      of    the   evidence,      to    prove      "that    the    contested

peremptory       challenge       was   exercised          on        unconstitutionally

impermissible grounds of presumed group bias."                         Osorio, supra,

199 N.J. at 492.

    A     trial     counsel's     recollection           of    the     jury    selection

process     is    undoubtedly     critical         to    the    court's       third-step

analysis.        Thus, a defendant's failure to demonstrate, to the

court's satisfaction, efforts to produce prior trial counsel, is

also a factor relevant to the court's third-step analysis where

new counsel appears.           A trial court conducting such proceedings

should not accept such representations of unavailability without

more.     See N.J.S.A. 2A:81-18 to 23 (providing a statutory means

to compel the attendance of out-of-state witnesses in criminal

proceedings);      see    also   State   v.    Maben,         132    N.J.     487    (1993)

(finding unacceptable the State's failure to secure forwarding

address of crucial witness who left the state prior to the case

being presented to the grand jury although fully aware of the

family's plan to leave New Jersey); State v. Williams, 226 N.J.




                                         24                                         A-1375-11T4
Super. 94, 101, 103 (App. Div. 1988) (noting the impropriety of

permitting     prosecutor's        reference       to    hearsay    statement       of

witness the State failed to produce at trial and who the State

failed   to    establish     was     unavailable        within   the   meaning      of

N.J.R.E.    62(6)).6        This   failure    to    present      evidence    of    due

diligence     to   secure    prior    trial    counsel's     attendance      at    the

remand hearing in this instance is not fatal, given the trial

court's failure to engage in the third-step analysis.

    In light of our decision vacating defendant's conviction,

we need not address defendant's remaining point that the court

double-counted the aggravating factors during the re-sentencing

hearing.      Nor need we address the points raised in defendant's

separate appeal of the denial of his PCR petition.

    Judgment       of   conviction     vacated      and    remanded    for     a   new

trial.   We do not retain jurisdiction.




6
  N.J.R.E. 62(6), which addressed the concepts of declarant
unavailability under the hearsay rules, has been replaced by
N.J.R.E. 804.



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