                                NOT FOR PUBLICATION WITHOUT THE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-4031-17T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

ISAKOVA O. SEALY,

          Defendant-Appellant.


                   Submitted November 6, 2019 – Decided December 31, 2019

                   Before Judges Accurso, Gilson and Rose.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 16-06-0917.

                   Arleo & Donohue, LLC, attorneys for appellant (Frank
                   Paul Arleo and Gianna A. Bove, on the briefs).

                   Esther Suarez, Hudson County Prosecutor, attorney for
                   respondent (Alanna M. Jereb, Assistant Prosecutor, on
                   the brief).

PER CURIAM
      Defendant Isokova O. Sealy – a former correction officer – was charged

in eleven counts of a forty-count indictment for his participation in a scheme to

smuggle tobacco into the Hudson County Correctional Facility. 1 Following a

jury trial, defendant was convicted of third-degree pattern of official

misconduct, N.J.S.A. 2C:30-7(a). The jury acquitted defendant on two counts

and was unable to reach a verdict on the remaining eight charges. He was

sentenced to a three-year prison term, with a two-year period of parole

ineligibility.

      Defendant appeals his conviction, raising the following points for our

consideration:

             I. . . . DEFENDANT WAS DENIED HIS
             CONSTITUTIONAL RIGHT TO COUNSEL OF
             CHOICE        WHEN THE    TRIAL   COURT
             ARBITRARI[]LY REFUSED HIS REQUEST FOR AN
             ADJOURNMENT TO RETAIN NEW PRIVATE
             COUNSEL.
             (Not raised below)

             II.   THE TRIAL COURT'S FAILURE TO
             INDIVIDUALLY VOIR DIRE JUROR [NUMBER
             NINE] AND THE REMAINING MEMBERS OF THE
             JURY DENIED THE DEFENDANT HIS RIGHT TO A
             FAIR TRIAL.
             (Partially raised below)


1
  Three inmates and their mothers were also charged in the indictment; their
matters are not part of this appeal.
                                                                         A-4031-17T1
                                       2
            III. DEFENSE       COUNSEL'S FAILURE TO
            REQUEST INDIVIDUAL QUESTIONING OF THE
            ENTIRE JURY DURING DELIBERATIONS IN
            ADDITION TO HER FAILURE TO RAISE THE
            VOIR DIRE ISSUE ON DIRECT APPEAL
            VIOLATED DEFENDANT'S RIGHT TO THE
            EFFECTIVE ASSISTANCE OF COUNSEL.
            (Not raised below)

                   A. DEFENSE COUNSEL'S FAILURE TO
                   REQUEST INDIVIDUAL QUESTION-
                   ING OF EACH MEMBER OF THE JURY
                   DURING       JURY  DELIBERATIONS
                   DEMONSTRATES HER SUBSTAND-
                   ARD PERFORMANCE.
                   (Not raised below)

                   B. DEFENSE COUNSEL'S FAILURE TO
                   RAISE THE VOIR DIRE ISSUE ON
                   DIRECT APPEAL DEMONSTRATES
                   HER SUBSTANDARD PERFORMANCE.
                   (Not raised below)

      We are persuaded by some of the arguments defendant raises in points I

and II, and – on the record before us – we are not convinced defendant received

a fair trial because his request to adjourn the trial to retain new private counsel

was summarily denied, and the trial judge thereafter failed to investigate

allegations that a juror introduced extraneous information during jury




                                                                           A-4031-17T1
                                        3
deliberations. We therefore reverse the conviction and remand for a new trial.

In view of our decision, the contentions raised in point III are moot. 2

                                         I.

      We first consider defendant's argument that the judge referenced in point

I (second motion judge) erred by summarily denying his request for an

adjournment to substitute private counsel, without fully applying the governing

law. In order to place the judge's findings in perspective, we summarize the

procedural history from the brief proceedings before her and the first motion

judge, who previously had denied defense counsel's request to be relieved of her

representation of defendant.

                                        A.

      Defendant was arrested in January 2016; retained counsel in February;

indicted in June; and arraigned in July. His opportunity to enter into a plea




2
   Without reaching the merits of defendant's ineffective assistance of counsel
argument, we nonetheless recognize the issues raised in point III are not ripe for
direct appeal. Resolution of those issues – which may have been grounded in
trial strategy – "lie[s] outside the trial record." State v. Preciose, 129 N.J. 451,
460 (1992). We also note the point headings incorrectly state the issues were
not raised on direct appeal, as this is defendant's direct appeal.



                                                                            A-4031-17T1
                                         4
agreement was "cutoff"3 in December. Ten days before the initial March 7, 2017

trial date, the PJ granted defense counsel's request for an adjournment because

counsel was on trial in another matter. The PJ scheduled a peremptory trial date

for May 2, although defense counsel apparently had informed the PJ she would

be on trial in another county on "the oldest case in the State[,]" with a client

who, unlike defendant, was charged with murder and had "been in jail since

2012."

      One month later, defense counsel moved to be relieved from her

representation of defendant, citing his failure to communicate with her and pay

for services she had rendered as of that date. Following oral argument on April

12, the first motion judge denied counsel's request, finding that the application

was belated in view of the upcoming May 2 trial date, and defendant had

expressed his desire for defense counsel to continue as his attorney. 4




3
  See R. 3:9-3(g) ("After the pretrial conference has been conducted and a trial
date set, the court shall not accept negotiated pleas absent the approval of the
Criminal Presiding Judge (PJ) based on a material change of circumstance, or
the need to avoid a protracted trial or a manifest injustice.").
4
  The record does not reflect that defendant was placed under oath before the
inquiry was conducted.


                                                                          A-4031-17T1
                                        5
      Apparently, the May 2 trial date was postponed to July 12 because defense

counsel was on trial in the murder case. On July 12, the PJ again granted defense

counsel's request to postpone the trial, this time because counsel "was starting

another trial." Defendant's trial was rescheduled to September 12.

      On that day, defense counsel sought an adjournment before the second

motion judge, again seeking to be relieved of her representation of defen dant.

Citing correspondence entitled "termination letter," which she had received from

defendant one week earlier, counsel told the judge, "there's been a breakdown

in communication that clearly will affect my ability to adequately and properly

defend Mr. Sealy at this time, given the fact that he even phrased his letter that

way and sent it to me." Among other things, 5 defendant's letter directed counsel

"to send his file to his new attorney . . . ."

      Defense counsel contacted defendant's potential new attorney, who

indicated he and his partner "had spoken with the State, and that they did not

. . . enter an appearance on this case or prepare a substitution of attorney . . . but




5
   Defendant also requested discovery and complained that counsel "had not
contacted him to prepare for [the upcoming] trial." Counsel informed the judge
that the file was "very voluminous," but she had made available to defendant all
discovery she received from the State.


                                                                              A-4031-17T1
                                           6
they would if [she] were to be relieved as counsel." Neither potential new

attorney appeared at the hearing.

      Defense counsel acknowledged her trial schedule in other matters caused

defendant's trial to be delayed three times. Counsel also told the judge she had

not spoken with defendant since May 2017, claiming she had previously "gone

over this case numerous times" with him, and it was his obligation to contact

her if he wished to discuss the case further. The prosecutor indicated he was

prepared to proceed, but "underst[oo]d defense counsel's reservations [in] trying

this matter." Accordingly, the prosecutor did not object to an adjournment, but

rather "submit[ted] to the [c]ourt and [its] best judgment."

      In a terse oral decision, the judge denied the application. Having noted

during colloquy with defendant the failure of defendant's potential new counsel

to appear in court that day, the judge directed her ruling to defendant:

                   This case is an old case. You have competent
            counsel. [Defense counsel] is . . . well known here in
            our criminal courts, and is well versed to defend this
            case. You wanted her on this case and begged this court
            before [the first motion judge], to keep her on there
            [sic]. That was long ago.

                   And now we cannot just keep on switching
            [attorneys], because . . . [t]hat's known as a delay tactic.
            Keep on changing attorneys. Get another adjournment,
            another adjournment, and another adjournment.


                                                                           A-4031-17T1
                                         7
                    I cannot delay this case any longer. We [are]
             going to be picking a jury this afternoon. I'm ordering
             all parties to report before [the trial judge] . . . .

             [(Emphasis added).]

                                        B.

      We commence our analysis with well-established principles, recognizing

we review the trial court's denial of an adjournment request under an abuse of

discretion standard. State v. Hayes, 205 N.J. 522, 537 (2011). It is axiomatic

that criminal defendants are guaranteed the right to the assistance of counsel

under the United States and New Jersey constitutions. State v. King, 210 N.J.

2, 16 (2012). An essential element is "the right of a defendant to secure counsel

of his own choice." State v. Furguson, 198 N.J. Super. 395, 401 (App. Div.

1985). That right, however, is not absolute. Ibid. "The trial court must strike a

balance between its inherent and necessary right to control its own calendar and

the public's interest in the orderly administration of justice, on the one hand, and

the defendant's constitutional right to obtain counsel of his own choice, on t he

other." Hayes, 205 N.J. at 538.

      "What constitutes a reasonable adjournment to permit a defendant to

retain counsel of his own choice depends generally upon the surrounding facts

and circumstances." Ibid. (quoting Furguson, 198 N.J. Super. at 402). The


                                                                            A-4031-17T1
                                         8
factors included in this determination are set forth in United States v. Burton,

584 F.2d 485, 490-91 (D.C. Cir. 1978), adopted by New Jersey courts in

Furguson, 198 N.J. Super. at 402, and reiterated in State v. Kates, 216 N.J. 393,

396 (2014) (Furguson factors):

            the length of the requested delay; whether other
            continuances have been requested and granted; the
            balanced convenience or inconvenience to the litigants,
            witnesses, counsel, and the court; whether the
            requested delay is for legitimate reasons, or whether it
            is dilatory, purposeful, or contrived; whether the
            defendant contributed to the circumstance which gives
            rise to the request for a continuance; whether the
            defendant has other competent counsel prepared to try
            the case, including the consideration of whether the
            other counsel was retained as lead or associate counsel;
            whether denying the continuance will result in
            identifiable prejudice to defendant's case, and if so,
            whether this prejudice is of a material or substantial
            nature; the complexity of the case; and other relevant
            factors which may appear in the context of any
            particular case.

      "If a trial court conducts a reasoned, thoughtful analysis of the appropriate

factors, it can exercise its authority to deny a request for an adjournment to

obtain counsel of choice." Kates, 216 N.J. at 396-97. "[A] lengthy factual

inquiry is [not] required." Id. at 397.

      But, the absence of such an "analysis results in a one-sided and,

consequently, arbitrary determination." State v. Martinez, 440 N.J. Super. 537,

                                                                           A-4031-17T1
                                          9
545 (App. Div. 2015). "[I]f a trial court summarily denies an adjournment to

retain private counsel without considering the relevant factors, or abuses its

discretion in the way it analyzes those factors, . . . deprivation of the right to

choice of counsel [can] be found." Kates, 216 N.J. at 397.

      Against that legal backdrop, we conclude the second motion judge abused

her discretion in her analysis of certain factors and failed to consider other

relevant factors. Without citing Furguson, or any governing law, the judge

summarily concluded the case was "old"; defendant "[kept] on changing

attorneys"; defendant "begged" the first motion judge to deny his attorney's prior

motion to be relieved; and defendant had "competent counsel." At least two of

those conclusions find no support in the record.

      Initially, we recognize the trial date had been postponed three times within

the fifteen-month timeframe following indictment and plea cutoff had been

entered nine months before the ultimate trial date.          But, each of those

adjournments was made at defense counsel's request and granted to

accommodate her trial schedule. Unlike defendant, counsel's clients in those

other matters were in custody or their cases were older. Absent from the record

is any indication that defendant previously sought to adjourn any of the trial

dates to retain new counsel. Rather, defense counsel represented defendant


                                                                          A-4031-17T1
                                       10
continuously from February 2016 to sentencing in April 2018. The judge's

determination that the trial was adjourned because defendant "[kept] on

changing attorneys" therefore finds no support in the record. Any implication

that the requested adjournment on September 12 was made for "dilatory,

purposeful, or contrived" reasons is accordingly suspect. Ibid. We discern no

basis to attribute the age of the case to any fault of defendant.

      Nor does the record support the judge's finding that defendant implored

the first motion judge to deny defense counsel's motion to be relieved:

            [FIRST MOTION JUDGE]: Okay. So let me ask you
            this. Do you want her to continue as your attorney?

            []DEFENDANT: Yes and no.

            [FIRST MOTION JUDGE]: Okay.

            []DEFENDANT: I mean, I don't really have a problem
            with her.

            [TRIAL COUNSEL]: And I don't have a problem with
            him . . . .

            []DEFENDANT: I mean, the financial issue is the
            problem, and I understand that. But I said there was
            [sic] . . . certain events that . . . transpired.

                   ....

            [FIRST MOTION JUDGE]: . . . before I proceed, I just
            need to know do you want her to be your lawyer for this
            trial or not?

                                                                          A-4031-17T1
                                       11
            []DEFENDANT: Well, I would like to be [sic].

That colloquy does not suggest defendant "begged" the first motion judge to

deny defense counsel's application.        Instead, defendant appears to have

equivocated, without further explanation or inquiry from his attorney or the

judge.

      Also, although the second motion judge noted defense counsel's

competence, our Supreme Court has recognized "the availability of other

competent counsel, while relevant, 'is no substitute by itself for the

constitutional right to choose counsel . . . .'" Kates, 216 N.J. at 396 (quoting

State v. Kates, 426 N.J. Super. 32, 46 (App. Div. 2012)). "To argue otherwise

is to confuse the right to counsel of choice – which is the right to a particular

lawyer regardless of comparative effectiveness – with the right to effective

counsel – which imposes a baseline requirement of competence on whatever

lawyer is chosen or appointed." Kates, 426 N.J. Super. at 46 (internal quotation

marks omitted).

      Turning to the remaining Furguson factors, we note at the conclusion of

the hearing the second motion judge correctly observed defendant's potential

new counsel had not contacted the court to seek an adjournment of trial or

indicated "he ha[d] been newly assigned [sic] to this case[,]" but the judge


                                                                         A-4031-17T1
                                      12
otherwise failed to determine "the length of the requested delay." Furguson, 198

N.J. Super. at 402. We see no reason, under the circumstances presented here,

why the judge could not have ordered potential new counsel to contact the court

forthwith to address that factor and any other concerns she had about adjourning

the trial.

       More importantly, the judge failed to inquire about defense counsel's

declaration that her communication with defendant had "br[oken] down."

Recognizing "defense counsel's reservations" in that regard, the prosecutor did

not oppose the application for an adjournment – nor assert any attendant

inconvenience – even though a new trial date had not been proposed. Notably,

the second motion judge did not preside over the trial and did not indicate

whether the trial judge's schedule would have been adversely impacted by an

adjournment. Absent from the record, therefore, is any indication that the

"litigants, witnesses, counsel, and the court" would have been inconvenienced

by an adjournment. Ibid.

       Finally, we reject the State's fleeting argument that defendant suffered no

prejudice by defense counsel's continued representation.           As we have

recognized, "[w]hen the right to counsel is wrongfully denied, it is not necessary

to inquire as to effectiveness of counsel or whether defendant suffered actual


                                                                          A-4031-17T1
                                       13
prejudice in the ensuing proceedings." Martinez, 440 N.J. Super. at 546; see

also Kates, 426 N.J. Super. at 44 ("A non-indigent defendant who is erroneously

or arbitrarily denied the constitutional right to counsel of his or her choice need

not show prejudice to obtain reversal of a conviction.").

      Because she failed to properly consider and balance the Furguson factors,

we conclude the second motion judge abused her discretion by summarily

denying defendant's request for an adjournment to substitute private counsel.

                                        II.

      We turn to the issues raised during jury deliberations concerning a juror's

possible introduction of extraneous information.

                                        A.

      On the second day of jury deliberations, Juror Number Seven sent a note

to the trial judge requesting to speak with him "in private."          The judge

summoned the juror into the courtroom in the presence of counsel to discuss her

request. After addressing an unrelated scheduling issue, Juror Number Seven

asked the judge: "Now, if there is an individual in the jury room that's more

biased because of a certain background, is that something that we're supposed

to bring up as a question, or how does that work?"




                                                                           A-4031-17T1
                                       14
      The judge responded that he could not "restrict" discussions between the

jurors, but he should be informed of a situation that was "potential[ly] harmful

to others or [if] it [wa]s becoming problematic or somebody ha[d] some concerns

. . . ." Juror Number Seven then stated: "It's just a very strong situation that's a

little scary . . . ." The judge told the juror, "if you think it's something, [you]

[sh]ould discuss it with your foreperson. If you think it's something . . . that I

need to address, then it should be presented out to me." After discussing the

exchange with defense counsel and the prosecutor outside the presence of the

juror, the judge instructed Juror Number Seven not to discuss their exchange

with the other jurors, but to send him a more detailed note if she had further

issues.

      Toward the end of deliberations on the following day, Juror Number

Seven sent the following note to the trial judge:

            Judge, [Juror Number Nine] cannot be a part of the jury
            team. She has family that are cops, her husband was in
            jail, she talked about her son being a cop, [and] her
            husband used to get things when he was in jail. Please
            consider her removal.

      In the presence of counsel, the judge again questioned Juror Number

Seven, noting the jury had indicated it had already reached a unanimous verdict




                                                                            A-4031-17T1
                                        15
on three of the eleven counts. When asked whether "anything beyond what [she]

wrote in the [note]" concerned her, Juror Number Seven replied:

                   It's not only me. . . . [I]t's a group of us and, in
            the conversations, there's bringing up Facebook or, you
            know, son's a cop and this is going on, that's going on.
            [Juror Number Nine] talks about her husband being in
            jail, getting things that he wasn't supposed to while he
            was in jail, . . . it's not a[n] . . . unbiased opinion that's
            constantly being thrown out there and it's making a lot
            of people uncomfortable. . . . It's getting crazy in there,
            to be honest.

      The judge instructed Juror Number Seven to return to the jury room while

he discussed with counsel her concerns and another note the jury had sent to him

regarding the taking of a partial verdict. Although much of the record is

indiscernible, defense counsel expressed concern that Juror Number Nine had

brought her "outside experiences" into the jury room. The judge indicated Juror

Number Nine "said she had family in law enforcement" during jury selection.

Because of the lateness of the hour, the judge excused the jury for the weekend.

      When the jury reconvened the following week, before responding to Juror

Number Seven's note, the judge heard argument from counsel. The prosecutor

asked whether the court explicitly had questioned Juror Number Nine about her

family history during jury selection, adding, "[i]f she wasn't [asked about it],

then I think it's an issue that the jury can't proceed." The judge replied, "Well,


                                                                             A-4031-17T1
                                        16
I think she indicated her husband was convicted of . . . bookmaking in the early

'80s." (Emphasis added).6

      Defense counsel requested the judge voir dire Juror Number Nine to learn

what she had disclosed to the jury about her husband's incarceration and how

that might have influenced her.       Counsel contended proceeding without

conducting any further inquiry would constitute reversible error. The judge

disagreed and elaborated:

            The difficulty this note presents is it appears what is
            going on in the jury room is jury deliberations. Jurors
            are told, often by attorneys during summations; use
            your life experience and common sense. They're told
            in my instructions to use your common sense.

                  There is nothing in this note that triggers a
            concern in this [c]ourt's mind about a team player. We
            know that this jury has been able to . . . although not
            delivered, . . . reach[] verdicts on [seven] of [eleven]
            counts. . . .

                  [T]he fact that [Juror Number Nine] may be
            talking about her son in law enforcement . . . they're

6
  During jury selection, Juror Number Nine revealed at sidebar that her father
was an attorney, her brother-in-law was a municipal chief of police, and her son
was a police officer for another municipality. The juror also disclosed that prior
to her marriage, her husband had been arrested for bookmaking in the 1980s
(emphasis added). She indicated that neither her family's law enforcement
employment nor her husband's "difficulties bookmaking [sic]" would impact her
ability to be a fair and impartial juror. Juror Number Nine did not, however,
disclose that her husband had served time in jail in connection with his
"arrest[]."
                                                                          A-4031-17T1
                                       17
            going to have discussions as part of the deliberations. I
            don't see any way to make inquiry [about] what impact
            it may have had on her. It doesn't make a difference.
            There's nothing wrong if her decision[-]making is based
            on who she is and what makes her tick.

                   Her decision[-]making may be based on the fact
            that she has a son in law enforcement. It doesn't mean
            she's prejudiced or biased. That's who she is. That's
            who you all knew . . . she was. She had a husband that
            was convicted of bookmaking. She indicated it had no
            impact on her life. She can be fair and impartial.

                   There's nothing to indicate that she is in any way
            using outside sources, [or] that she's speaking to
            anybody about this case outside. There's not an
            indication there is a single instruction of this [c]ourt
            that has been violated by [J]uror [N]umber [Nine]. And
            I have to, in all candor, question somewhat the sincerity
            of [J]uror [N]umber [Seven] writing a note that
            someone's not a team player.

                  ....

                   The note doesn't say [J]uror [N]umber [Nine]
            spoke to her husband last night and he told her that he
            used to get things in jail. It doesn't say that. So there's
            nothing to make inquiry of this juror. She may be
            speaking about their life experiences, as I imagine all
            of them do, as we tell them to use [their] common sense.
            What's your common sense based on? Life experience.
            I don't find that there's . . . any further inquiry needed
            to be raised.

      Defense counsel disagreed, arguing: "The issue that I have is that a juror

wrote on a note that her husband received things in jail. That goes directly to


                                                                          A-4031-17T1
                                       18
this case."7 The judge denied counsel's request that the court conduct a further

inquiry, and her ensuing application for a mistrial.           The jury resumed

deliberations, and shortly thereafter rendered a partial verdict, as stated above.

                                        B.

      We begin our review with well-settled principles. The Sixth Amendment

to the United States Constitution and Article I, paragraph 10 of the New Jersey

Constitution guarantee criminal defendants the right to trial by an impartial jury.

See State v. R.D., 169 N.J. 551, 557 (2001). A criminal defendant "is entitled

to a jury that is free of outside influences and will decide the case according to

the evidence and arguments presented in court in the course of the criminal trial

itself." State v. Williams, 93 N.J. 39, 60 (1983). "The securing and preservation

of an impartial jury goes to the very essence of a fair trial." Ibid.

      Ordinarily, we defer to the trial court's decisions concerning "matters

pertaining to the jury." R.D., 169 N.J. at 560. Accordingly, "[t]he decision to

grant a mistrial rests within the sound discretion of the trial judge." State v.


7
   Defendant did not testify nor present the testimony of any witnesses at trial.
Notwithstanding the testimony of three inmates, who claimed their mothers paid
defendant to smuggle tobacco into the jail for them, and a video apparently
depicting defendant bringing tobacco into the jail, defense counsel argued the
State failed to prove defendant was guilty as charged in the indictment. Among
other things, counsel contended the State failed to prove the substance depicted
in the video was tobacco.
                                                                           A-4031-17T1
                                        19
Gleaton, 446 N.J. Super. 478, 524 (App. Div. 2016).          While we recognize

"granting a mistrial in a criminal case 'is an extraordinary remedy[,]' the trial

judge is bound to grant this relief when it is necessary to 'prevent an obvious

failure of justice.'" Id. at 514 (quoting State v. Yough, 208 N.J. 385, 397 (2011))

(citation omitted).

      Whether the court failed to properly exercise its discretion in handling

juror issues depends upon whether the court's actions impaired defendant's right

to a fair trial. "[A] defendant's right to be tried before an impartial jury is one

of the most basic guarantees of a fair trial." State v. Brown, 442 N.J. Super.

154, 179 (App. Div. 2015) (citation omitted).

      We have observed the trial judge has a "duty to investigate any claims that

may affect the integrity of the jury's deliberations." Gleaton, 446 N.J. Super. at

518. For example, in Gleaton, we rejected the trial judge's reliance on one juror's

description of an issue concerning another juror. We observed "the judge should

have interviewed each juror individually." Id. at 519. "This approach . . .

permit[s] the judge to gauge the extent of the problem in a private setting

conducive to promote candor and honesty and less vulnerable to any

intimidation or unintended pressures associated with group-thinking." Id. at

518-19; see also Pressler & Verniero, Current N.J. Court Rules, cmt. 2.1 on R.


                                                                           A-4031-17T1
                                       20
1:16-1 (2020) (clarifying that although the Rule applies to post-verdict juror voir

dire, the same method to determine juror taint also applies during trial and jury

deliberations).

        Of course, the trial judge must avoid eliciting information from the jur ors

about their deliberative process and their inclinations on the defendant's guilt.

See State v. Jenkins, 182 N.J. 112, 134 (2004). We acknowledge that this is

often easier said than done, particularly here, where the jury was obviously

divided, the court had already given an Allen8 charge, and had instructed the

jury that it could render a partial verdict. We understand the judge's reluctance

to interject himself into the jury's deliberations under these circumstances . We

conclude, however, that Juror Number Seven's allegation that Juror Number

Nine related matters extraneous to the evidence adduced at trial, i.e., her

husband's apparent disclosure about how he obtained "things" when he was

incarcerated – the very issue the jury was charged with considering here –

required, at the very least, closer questioning of Juror Number Seven and likely

voir dire of Juror Number Nine.

        In reaching our decision, we note Juror Number Nine's reference to her

husband's experience while incarcerated related directly to the charges before


8
    Allen v. United States, 164 U.S. 492 (1986).
                                                                            A-4031-17T1
                                        21
the jury and was not the sort of common life experience or knowledge jurors

might have acquired from the media. Compare State v. Athorn, 46 N.J. 247, 252

(1966) (recognizing statements by jurors that "cops take bribes" constituted

permissible deliberation based on life experience learned from the media) with

State v. Grant, 254 N.J. Super. 571, 588 (App. Div. 1992) (observing a juror's

statements about conversations with her correction officer husband regarding

his opinion on the defendant's guilt based on his law enforcement experience

constituted impermissible extraneous information).

      In sum, because we conclude the second motion judge summarily

adjourned the trial without properly assessing the relevant Furguson factors, and

the trial judge should have questioned Juror Number Seven as to precisely what

Juror Number Nine related to the jury about her husband's receipt of "things that

he wasn't supposed to" get in jail before declining to voir dire Juror Number

Nine, we are constrained to reverse and remand for a new trial. See State v.

Gibson, 219 N.J. 227, 241 (2014) ("A single error or a combination of errors in

a pre-trial proceeding or a trial or both may require an appellate court to reverse

the conviction and to remand for a new trial.").

      Reversed and remanded for a new trial. We do not retain jurisdiction.




                                                                           A-4031-17T1
                                       22
