                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1622-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

JOSE PINTO, a/k/a JOSE E.
PINTO, JR., JOSE N. PINTO,
and MUNCHO,

     Defendant-Appellant.
____________________________

                    Submitted November 12, 2019 – Decided February 27, 2020

                    Before Judges Moynihan and Mitterhoff.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Camden County, Indictment No. 16-07-2162.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Brian P. Keenan, Assistant Deputy Public
                    Defender, of counsel and on the briefs).

                    Jill S. Mayer, Acting Camden County Prosecutor,
                    attorney for respondent (Linda Anne Shashoua, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).
            Appellant filed a pro se supplemental brief.

PER CURIAM

      Defendant Jose Pinto was charged in a four-count indictment arising from

a motor-vehicle police pursuit, much of which was captured on dash-cam video,

ending in a crash that injured a third party; a controlled dangerous substance

(CDS) was found in defendant's vehicle. Defendant appeals from his conviction

by jury for second-degree eluding, N.J.S.A. 2C:29-2(b) (count one), second-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(6) (count two), and third-degree

possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count four);1 and from his

extended-term, fourteen-year prison term on count two, concurrent seven-year

sentence on count one and consecutive three-year term on count four. In his

merits brief, he argues:

            POINT I

            DEFENDANT       WAS     DENIED      HIS
            CONSTITUTIONAL RIGHT TO COUNSEL OF
            CHOICE WHEN THE JUDGE REFUSED TO GRANT
            A CONTINUANCE SO THAT HE COULD RETAIN
            PRIVATE COUNSEL PRIOR TO THE TRIAL
            WITHOUT CAREFULLY CONSIDERING EACH OF
            THE FACTORS SET FORTH IN CASES SUCH AS
            STATE V. KATES.


1
  Count three of the indictment charging second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(6), was dismissed before trial.
                                                                       A-1622-17T2
                                       2
            POINT II

            THE  JUDGE    IMPOSED  A   MANIFESTLY
            EXCESSIVE SENTENCE REQUIRING REVERSAL.

                   A.  ALTHOUGH SUPPORTED BY
                   AMPLE EVIDENCE IN THE RECORD,
                   THE JUDGE F[A]ILED TO FIND
                   MITIGATING FACTOR ELEVEN.

                   B.  THE   SENTENCING   JUDGE
                   ERRED IN DETERMINING THE
                   EXTENDED-TERM     SENTENCING
                   RANGE FOR A SECOND-DEGREE
                   OFFENSE.

                   C.  THE   SENTENCING    JUDGE
                   ERRED IN FAILING TO CONSIDER
                   THE YARBOUGH FACTORS WHEN
                   IMPOSING A CONSECUTIVE TERM
                   ON THE UNLAWFUL POSSESSION OF
                   CDS CHARGE.

In a pro se brief, he adds:

            POINT I

            THE TRIAL COURT ERRED BY FAILING TO
            DECLARE A MISTRIAL AFTER THE JURY WAS
            TAINTED.

            POINT II

            THE TRIAL COURT ERRED BY PERMITTING THE
            STATE TO REVEAL THE NATURE OF
            DEFENDANT'S PRIOR CRIMINAL CONVICTIONS
            IN CONTRAVENTION TO [N.J.R.E.] [] 609
            (A)(2)(II).

                                                      A-1622-17T2
                                 3
            POINT III

            THE TRIAL COURT ABUSED IT[S] DISCRETION
            IN IMPOSING A[] [FOURTEEN] YEAR EXTENDED
            TERM BECAUSE THE TRIAL COURT FAILED TO
            EXPLAIN HOW HE ARRIVED AT SETTING THE
            TERM WITHIN THE EXTENDED TERM RANGE.

Because of errors committed in excusing a deliberating juror, we are constrained

to reverse and remand for a new trial.

      During jury deliberations, the trial judge received a note that read: "Juror

[number eight] would like to request an alternate due to personal reasons." In a

subsequent colloquy with the judge, in both counsel's presence, when asked to

tell the reason for her request, the juror said: "Personal matters from a couple

years back. So I've been in a case, and I had to testify for someone. And like

I'm traumatized about that situation. So my opinion in this has me a little shaky."

The juror stated she felt she could not continue as a deliberating juror. The

colloquy continued:

            [THE COURT]: Did anyone in the jury room in any
            way try to compel or force you to withdraw as a
            deliberating juror?

            [JUROR NUMBER EIGHT]: No.

            [THE COURT]: This is solely your decision based on
            a past traumatic incident in your life?

            [JUROR NUMBER EIGHT]: Yes.

                                                                           A-1622-17T2
                                         4
      In response to defense counsel's concern, the judge asked the juror if she

discussed the issue with other jurors. The juror responded, "I talked to him

about it and explained everything that happened. And he just told me if I felt

like I'm not comfortable, then I should speak to you about the situation." 2 The

juror then responded affirmatively to the judge's question: "And this is solely

your decision because of the past traumatic event that you've gone through in

your life?" The judge then asked the juror to return to the jury room with an

instruction: "I'm going to ask that you ask the jurors not to conduct any further

deliberation. They'll be brought back into the courtroom shortly."

      The judge commented to counsel immediately after the juror returned to

the jury room, "clearly she's emotionally upset about something that happened

in her past, to the extent [that] she's advised them that she feels she can't

deliberate any further." He announced his decision to release the juror and

replace her with an alternate juror. Defense counsel interjected:

            Judge, my only concern is if there have been
            discussions regarding the incident.        I would be
            compelled to ask for an individual polling to see if any
            relation of the incident from [j]uror [number eight] as
            to the other members of the panel effects their ability to
            be fair and impartial going forward on the case.


2
  The record is silent as to whom juror number eight referred when she said
"him" and "he."
                                                                         A-1622-17T2
                                        5
The judge declined to individually poll the jurors, explaining that his additional

instructions to the jury, including that to "disregard anything that's not been

presented as evidence[,]" should address any concerns. Defendant's counsel

responded, "Okay. Fair enough, [j]udge."

      The jury returned and an alternate juror was selected. The judge instructed

the reconstituted jury:

                   Members of the jury, as you know, [j]uror
            [number eight] was excused from the jury. An alternate
            juror has been selected to take her place. The reason
            that she was excused was entirely personal to her. It
            had nothing to do with her views on this case or her
            relationship with the other members of the deliberating
            jury. Please do not speculate on the reasons why the
            juror was excused.
                   As of this moment, you are a new jury, and you
            must start your deliberations over again. The parties
            have the right to have a verdict reached by . . . [twelve]
            jurors who have had the full opportunity to deliberate
            from start to finish.
                   The alternate juror has no knowledge of any
            earlier deliberations.        Consequently, the new
            deliberating juror must start over at the very beginning
            of deliberations.      Each member of the original
            deliberating jury must set aside and disregard whatever
            may have occurred and anything that may have been
            said in the jury room following my instructions to you.
                   You must give no weight to any opinion
            expressed by [j]uror [number eight] during
            deliberations before that juror was excused. Together,
            as a new jury, you must consider all evidence presented
            at trial as part of your full and complete deliberations
            until you reach your verdict.

                                                                          A-1622-17T2
                                        6
                    And with that, I’m going to again ask that you
              return to the jury room to begin your new deliberations.

The jury returned a verdict of guilty on the three counts it considered. 3

      Appellate review "of a trial court's decision to remove and substitute a

deliberating juror because of an 'inability to continue,' pursuant to Rule 1:8-

2(d)(1), is deferential. We will not reverse a conviction unless the court has

abused its discretion." State v. Musa, 222 N.J. 554, 564-65 (2015) (quoting

State v. Williams, 171 N.J. 151, 168 (2002)); State v. Valenzuela, 136 N.J. 458,

473 (1994).

      The Sixth Amendment guarantees a criminal defendant the right to an

impartial jury at trial, U.S. Const. amend. VI, and this right "goes to the very

essence of a fair trial," State v. Williams, 93 N.J. 39, 60 (1983). The jury must

be "free of outside influences and . . . decide the case according to the evidence

and arguments presented in court in the course of the criminal trial itself." Ibid.


3
   The transcript does not indicate the length of jury deliberations before juror
number eight requested an alternate juror take her place. Nor does it indicate
the time the reconstituted jury deliberated before returning its verdict. We note
court proceedings that day began at 9:05 a.m., and the jury heard testimony from
four witnesses, including defendant. After proceedings outside of the jury's
presence, the court broke for lunch from 11:40 a.m. until 1:00 p.m. when it
resumed for a charge conference, followed by summations, jury instructions,
initial deliberations, colloquy with juror number eight and reconstitution of the
jury, final deliberations, return of the verdict and subsequent post-verdict
proceedings. The record indicates the "matter concluded at 3:16 p.m."
                                                                             A-1622-17T2
                                         7
New Jersey courts have noted that a defendant's right "to be tried by an impartial

jury is of exceptional significance," so it must be "as nearly impartial 'as the lot

of humanity will admit[.]'" Ibid. (quoting State v. Singletary, 80 N.J. 55, 62

(1979)).

      Cognizant of defendant's constitutional guarantee of an impartial jury

trial, we conclude the judge initially addressed juror number eight's request

properly but went astray in failing to ascertain if her concerns tainted the

remaining jurors. When he first received the juror's note, the judge followed our

Supreme Court's instruction to "act swiftly to overcome any potential bias and

to expose factors impinging on the juror's impartiality." State v. R.D., 169 N.J.

551, 558 (2001). The judge heeded the Court's mandated obligation that he

"interrogate the juror, in the presence of counsel, to determine if there is a

taint[.]" Ibid.

      Unfortunately, the colloquy did not provide sufficient information for the

judge to determine if juror number eight should be excused pursuant to Rule

1:8-2(d)(1) which provides:

             If the alternate jurors are not discharged and if at any
             time after submission of the case to the jury, a juror dies
             or is discharged by the court because of illness or other
             inability to continue, the court may direct the clerk to
             draw the name of an alternate juror to take the place of
             the juror who is deceased or discharged.

                                                                            A-1622-17T2
                                         8
         Notwithstanding what the Court characterized as the Rule's

              broad language, trial courts do not have unbridled
              discretion to reconstitute deliberating juries in the face
              of a jury crisis. On the contrary, the removal rule may
              be used only in limited circumstances. . . . [to] be
              invoked only as a last resort to avoid the deplorable
              waste of time, effort, money, and judicial resources
              inherent in a mistrial.

              [State v. Hightower, 146 N.J. 239, 253-54 (1996).]


The Court reiterated the Rule's inability-to-continue standard, that to remove a

juror,

              the record [must] adequately establish[] that the juror
              suffers from an inability to function that is personal and
              unrelated to the juror's interaction with the other jury
              members. If a court suspects that the problems with the
              juror are due to interactions with other jurors, the court
              should instruct the jury to resume deliberations.

              [Hightower, 146 N.J. at 254 (alterations in original)
              (quoting Valenzuela, 136 N.J. at 472-73).]

         The Hightower Court cautioned

              the inability-to-continue standard may not be invoked
              to remove a deliberating juror when the record merely
              reveals that the juror has a position that is different
              from that of other jurors. Nor may the standard be
              employed to remove a deliberating juror where the
              record reveals that the juror's problems are related to
              both personal circumstances and factors arising from
              the juror's interactions with other jurors. In other
              words, the reason must be exclusively personal.

                                                                           A-1622-17T2
                                          9
             [Id. at 255 (citations omitted).]

      By way of example, the Court has

             sanctioned the removal of a deliberating juror for
             "inability to continue" when the juror has "expressed
             refusal to abide by her sworn oath to follow the law,"
             [State v. Jenkins, 182 N.J. 112, 130 (2004)],
             complained of financial hardship, Williams, 171 N.J. at
             167, stated that his nervous and emotional condition
             "affect[ed] his judgment" and ability to render a fair
             verdict, State v. Miller, 76 N.J. 392, 401, 406-07
             (1978), and "disregarded the court's unambiguous
             admonitions" and had a "conversation with a relative
             [that] patently influenced [her]," State v. Holloway,
             288 N.J. Super. 390, 404 (App. Div. 1996). In those
             examples, the removal is for reasons personal to the
             juror and not for reasons relating to the interchange
             between jurors or the deliberative process.

             [Musa, 222 N.J. at 566-67 (second, third and fourth
             alterations in original).]


Thus, in Valenzuela, the Court concluded the trial court abused its discretion in

discharging a juror where the record revealed "the juror's problems related not

only to personal circumstances but also to factors arising from the juror's

interactions with the other jurors. . . ." 136 N.J. at 473.

      Although the trial judge elicited that no one compelled or forced juror

number eight to withdraw as a deliberating juror, the colloquy between the trial

court and juror number eight did not reveal if her request to be excused was


                                                                         A-1622-17T2
                                        10
based on any interaction with other jurors. In other words, the judge did not

discover if her request was based on her stance in deliberations as compared to

that of fellow jurors. Nor did the judge inquire as to the nature of her past

experience as a witness. In short, the trial court's colloquy was too short.

      We recognize the trial court's role in questioning a deliberating juror

involves a delicate balance between ascertaining details of the juror's reasons

for seeking release from the deliberative process and maintaining the secrecy of

jury deliberations. See Musa, 222 N.J. at 568-69; Jenkins, 182 N.J. at 134-35.

"Generally, if a court inquires of a juror on the subject of 'inability to continue,'

the questions must be carefully crafted to elicit answers that only bear on reasons

personal to the juror and that in no way elicit the drift of the deliberations or

voting inclinations of any juror." Musa, 222 N.J. at 569.

      But, without ascertaining the nature of the personal information that

caused the juror consternation—here, the nature of her testimony in another

matter—and the person to whom she "talked . . . about it," the judge's

questioning did not comport with the Court's instruction:

             An appropriate voir dire of a juror allegedly in
             possession of extraneous information . . . should inquire
             into the specific nature of the extraneous information,
             and whether the juror intentionally or inadvertently has
             imparted any of that information to other jurors.
             Depending on the juror's answers to searching

                                                                             A-1622-17T2
                                        11
            questions by the court, the court must then determine
            whether it is necessary to voir dire individually other
            jurors to ensure the impartiality of the jury. That
            determination should be explained on the record to
            facilitate appellate review under the abuse of discretion
            standard.

            [R.D., 169 N.J. at 560-61.]


The judge's limited questioning of juror number eight was a mistaken exercise

of discretion.

      We also determine the judge abused his discretion in both failing to

inquire with whom juror number eight had discussions and denying defendant's

request to voir dire the remaining jurors about the impact of juror number eight's

disclosure to "him" whom she referenced, or "them" that the judge alluded to

when he stated that the juror was "emotionally upset about something that

happened in her past, to the extent [that] she's advised them that she feels she

can't deliberate any further." The judge should have also inquired if juror

number eight said anything about her colloquy with the judge in court after she

returned to the jury room, especially because the judge did not instruct juror

number eight not to relate those discussions, or their subject matter, to the

remaining jurors. See State v. Wormley, 305 N.J. Super. 57, 70 (App. Div.

1997) (finding that even though the excused juror stated she did not discuss


                                                                          A-1622-17T2
                                       12
extraneous information with anyone, "there was a strong likelihood that, even

indirectly or unintentionally, she may well have," in that there "was at least one

break during which the jurors commingled"). The judge knew he was going to

instruct the jury after replacing juror number eight. He should have warned

juror number eight in light of that part of the instruction providing:

            the excused juror's departure was prompted by personal
            issues, rather than by his or her view of the case or
            relationships with other jurors, . . . the reconstituted
            jury should not speculate on the reasons for the juror's
            departure, and . . . the jury should begin deliberations
            anew by setting aside their previous discussions so that
            the reconstituted jury may conduct full and complete
            deliberations.

            [State v. Ross, 218 N.J. 130, 151 (2014).]

See also Model Jury Charges (Criminal), "Judge's Instructions When Alternate

Juror Empaneled After Deliberations Have Begun" (rev. Mar. 14, 2016). The

judge should have ensured that juror number eight did not inform the other jurors

of the reason for her departure.

      Our Supreme Court cautioned the "determination that the reasons for the

removal of [a juror] were personal to [the juror] and not driven by the

deliberative process does not resolve the question of whether it was appropriate

to reconstitute the jury with an alternate juror." Jenkins, 182 N.J. at 130. The

trial court must determine if the jury was tainted by a juror's extraneous

                                                                          A-1622-17T2
                                       13
information. R.D. 169 N.J. at 559. "That determination requires the trial court

to consider the gravity of the extraneous information in relation to the case, the

demeanor and credibility of the juror or jurors who were exposed to the

extraneous information, and the overall impact of the matter on the fairness of

the proceedings." Ibid.

      While "the decision to voir dire individually the other members of the jury

best remains a matter for the sound discretion of the trial court," to which no per

se rule pertains, id. at 561, the preferred practice, indeed duty, is to "ask probing

questions to protect the impartiality of the jury," id. at 563. As we said in State

v. Brown, 442 N.J. Super. 154, 181 (App. Div. 2015), "[a]lthough a deliberating

juror's bias or prejudice falls within the 'inability to continue' standard, the court,

in opting for substitution rather than a mistrial, must ensure, by appropriate voir

dire, that the other jurors were not tainted by the removed juror."

      Unlike in R.D., where "there was no meaningful opportunity for the other

members of the jury to be tainted[,]" 169 N.J. at 563, juror number eight

admitted she had discussed her personal information with someone. Further,

she returned to the jury room after colloquy with the judge without any

instruction to refrain from relating that colloquy with the other jurors; she was

told only to "ask the jurors not to conduct any further deliberation."


                                                                               A-1622-17T2
                                         14
      The judge's abbreviated questioning did not disclose sufficient

information for him to determine if the reason for juror number eight's request

was just personal to her or whether her interactions with her fellow jurors

influenced her request. Moreover, even if her excusal was appropriate, the

questioning did not provide him enough information to determine whether it was

appropriate to declare a mistrial or to empanel an alternate juror. The R.D. Court

recognized the trial court's discretion in deciding whether a new trial based on

juror taint is warranted, but affirmed its prior holding that

            "[i]f the irregular matter has that tendency on the face
            of it, a new trial should be granted without further
            inquiry as to its actual effect. The test is not whether
            the irregular matter actually influenced the result, but
            whether it had the capacity of doing so." [Panko v.
            Flintkote Co., 7 N.J. 55, 61 (1951)]; see also
            [Hightower, 146 N.J. at 266-267] (stating "[a]ny juror
            misconduct or improper intrusion into the deliberations
            of a jury that 'could have a tendency to influence the
            jury in arriving at its verdict in a manner inconsistent
            with the legal proofs and the court's charge' is a ground
            for a mistrial"). The right to an impartial jury is of
            exceptional importance, and "that aspect of impartiality
            mandating 'that the jury's verdict be based on evidence
            received in open court, not from outside sources'" is
            particularly critical to fulfilling the essence of that
            right. [State v. Bey, 112 N.J. 45, 75 (1988)].

            [R.D. 166 N.J. at 558-59 (first and fourth alterations in
            original).]



                                                                          A-1622-17T2
                                        15
      The trial judge did not develop a full record that would properly inform a

decision to replace juror number eight or to return her to deliberate; or to replace

juror number eight with an alternate or to declare a mistrial. That improper

exercise of discretion compels us to reverse defendant's conviction and remand

this matter for a new trial. In light of our decision, we need not address

defendant's other arguments.

      Reversed and remanded. We do not retain jurisdiction.




                                                                            A-1622-17T2
                                        16
