Petition for Writ of Certiorari — Pollio v. New Jersey

87-1740. FILED

APR 20 1986

JOSEPH F. SPANIOL, UR, |

—CLERK

In The ‘

Supreme Court of the United States

October Term, 1987

co)

STATE OF NEW JERSEY,

Respondent,

Vv.

JOSEPH P. POLLIO,

Petitioner.

ty

Vv

PETITION OF JOSEPH P. POLLIO FOR WRIT OF

CERTIORARI TO THE SUPERIOR COURT OF

NEW JERSEY, APPELLATE DIVISION

ra’

Vv

Jan ALan Bropy

Crccu1, Bropy & AGNELLO

34 Park Avenue

P.O. Box 158

Lyndhurst, New Jersey 07071

(201) 939-1550

Attorneys for Petitioner

Joseph P. Pollio

Jan ALAN Bropy

On the Brief

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

QUESTIONS PRESENTED

1. Whether the original jury, having deliberated 8

hours 50 minutes over two days in a ease involving one

incident of alleged sexual contact in which the primary

issue was the credibility of the victim as against that of

the defendant, had reached an advanced stage of delibera-

tions so that the likelihood that deliberations would truly

begin anew was so remote as to foreclose juror substi-

tution?

2. If the juror substitution was proper under the

facts presented in this case, did the minimal period of the

reconstituted jury’s deliberations (7.e., 2 hours 9 minutes),

when compared to the period of the original jury’s delib-

erations (7.e., 8 hours 50 minutes), demonstrate that de-

fendant was, in fact, prejudiced by the substitution?

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ... scons sonata i

ig ya iy iy |, RENNER ENCE et E ANE 1

OPINION BELOW ..........55.5.4. eee ee: 1

JURISDICTIONAL STATEMENT 2

CONSTITUTIONAL PROVISIONS INVOLVED 2

STATEMENT OF THE CASS eee 2

ARGUMENT _............... eee 9)

OCONCEUBIOR anise aaa cepacia 14

APPENDIX

OPINION OF SUPERIOR COURT OF NEW

JERSEY, APPELLATE DIVISION, EN-

TERED OCTOBER 16, 1567 App. 1

ORDER OF SUPREME COURT OF NEW

JERSEY ENTERED FEBRUARY 17, 1988 App. 4

)

ill

TABLE OF AUTHORITIES

Page

CasEs

Bulis v. United States, 490 A.2d 197 (D.C. App.

SN eee er a? ees 2: Ae

Burch v. Louisiana, 441 U.S. 130, 99 S.Ct. 1623, 60

SS kG Fe: ee [URIs eas en Meee Pb SRI 5

Duncan v. Lowisiana, 391 UWS. 145, 88 S.Ct. 1444,

a cusniutioin~stninsemsiemananion 5

Johnson v. Duckworth, 650 F.2d 112 (7th Gir. 1981) .. 5

People v. Collins, 17 Cal.3d 687, 131 Cal. Rptr. 782,

552 P.2d 742 (1976), cert. den., 429 U.S. 1077,

97 8.Ct. 820, 50 D.Bd.2d 796 (1967) nna Dy 6, 7

State v. Corsaro, 107 N.J. 339 (June 23, 1987) .....7, 8,9, 10

State v. Lehman, 108 Wis.2d 291, 321 N.W.2d 212

SN EE an ee ee

State v. Maller, 79 NJ. SOD (V9TB) ccc ccc ccc cece neencseeeeeeee 7, 8,9

State v. Trent, 79 N.J. 251 (1979) ........... ee. eae are

United States v. Barone, 83 F.R.D. 565 (S.D. Fla.

a ald ied etc lah indians tinge 6

United States v. Kopituk, 690 F.2d 1289 (11th

A SS aA SEE RS, Sek NC TE ee a 6

Eee SEES Pee a ee ee ee eT a 11,12

United States v. Phillips, 664 F.2d 971 (Sth Cir.

1981), cert. denied, 475 U.S. 1136 & 449 U.S.

906, 102 S.Ct. 2965 & 1038 S.Ct. 201, 73 L.Fd.2d

igot @ 74 6.24.24 166 (1962) », 6, 7,13

Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26

Nee sda hineseseiiniioan 9)

piece iis

iv

TABLE OF AUTHORITIES—Continued

Page

CONSTITUTIONAL PROVISIONS

United States Constitution AAP) SAN RIED oe 7

United States Constitution,

Amendment VI ..... ok oe ee ad ae ee a S|

United States Constitution,

Amendment NIV... ot eet ster | neha Ola. Bus Tien uo 4"

ST NIT III ci seccccencesceciurtshnciosrcencneierniosioennnseieei 7

STATUTES

wise «see 2

I rn a i npcedeingesecnleh 2

EF Me at |. RA SRLARIES eparpmermnsnecisenen N04 HEreratr i Siaeeu aN 2

N.J.S.A. 2C :14-2a(6) ......... PUES HES Pan eee een 6 be nae nen 3

N.J.S.A. 2C:14-2e(1) 2

RvuLEs

Sup.Ct.R. 20.1

Fed.R.Crim.P. 24(e) .

Ee, I rad ne Sh pirat nO Chen os TON NOOR OO IOAT 9

In The

Supreme Court of the United States

October Term, 1987

o

STATE OF NEW JERSEY,

Respondent,

JOSEPH P. POLLIO,

Petitioner.

o—

PETITION OF JOSEPH P. POLLIO FOR WRIT OF

CERTIORARI TO THE SUPERIOR COURT OF

NEW JERSEY, APPELLATE DIVISION

Ly

Vv

Petitioner Joseph P. Pollio (“defendant”) respect-

fully prays that a writ of certiorari be issued to review

the judgment and opinion of the Superior Court of New

Jersey, Appellate Division (“Appellate Division”) en-

tered in this matter on October 13, 1987.

4)

Vv

OPINION BELOW

The opinion of the Appellate Division is unreported.

It is set out in the appendix. (App. 1-3).

1

JURISDICTIONAL STATEMENT

The judgment and opinion of the Appellate Division

was entered on October 13, 1987. On February 17, 1985,

the Supreme Court of New Jersey entered its order deny-

ing defendant's petition for certification. (App. 4). Thus

petition for writ of certiorari has been filed within 60 days

thereafter pursuant to 28 U.S.C. § 2102(d) and Supreme

Court Rule 20.1. The jurisdiction of this court is invoked

in accordance with 28 U.S.C. § 1257(3).

CONSTITUTIONAL PROVISIONS INVOLVED

This ease involves Amendment VI of the United

States Constitution, which provides as follows:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an im-

partial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be

informed of the nature and cause of the aecusation;

to be confronted with the witnesses against him; to

have compu'sory process for obtaining witnesses in

his favor, and to have the Assistance of Counsel for

defence.

— 0

STATEMENT OF THE CASE

On May 16, 1986 after a jury trial before the Superior

Court of New Jersey, Law Division, Criminal Part, de

fendant was found guilty of sexual assault (.V.J.S.A. 2C :14-

~e(1)) and criminal restraint (N.J.S.A. 2C :13-2a) and was

acquitted of aggravated sexual assault (N.J.S.A. 2C :14-2a

(6)). He was sentenced on September 23, 1986 to concur-

rent presumptive custodial terms of seven and four years

respectively.

The trial below commenced on May 7, 1986 and, after

four and one-half days of testimony, the original jury

commenced its deliberations at 2:55 p.m. on May 14, 1986.

At that time, the two alternate jurors were sequestered

apart from the jury pending the completion of the delib-

erations.

The original jury deliberated for 8 hours 50 minutes

over a period of two days without reaching a verdict.

Prior to the commencement of deliberations on the third

day, the trial judge granted the State’s motion to dis-

charge one of the jurors for cause over defendant’s ob-

jection.!

The discharged juror was replaced by one of the alter-

nates and, after the defendant’s motion for a mistrial was

denied, the reconstituted jury was directed to begin its

deliberations anew.’ It deliberated only 2 hours 9 minutes

before announcing its verdict.

1 During the evening of the second day of deliberations, the

juror appproached a member of defense counsel’s firm at a

bowling alley and asked the attorney if he would answer a legal

question for him. The juror was unaware that the attorney was

a member of defense counsel’s firm. However, the attorney

immediately realized that the juror was sitting on this case and

terminated the conversation. Based upon the foregoing, the

trial judge granted the State’s motion to discharge the juror.

2 In addition to his trial objections, defendant presented the

juror substitution issues to the Appellate Division. (See App. 2-3).

The chronology of the deliberations is as follows:

ORIGINAL JURY

May 14, 1986

Commencement of deliberations

Jury excused for the day

Elapsed time

May 15, 1986

Resumption of deliberations

Request for instructions

Elapsed time

Resumption of deliberations

Jury excused for lunch

Elapsed time

Resumption of deliberations

Jury excused for the day

Elapsed time

Total time of deliberations

2:59 p.m.

4:55 p.m.

2 hours 0 minutes

—_

‘11 a.m.

11:35 a.m.

2 hours 24 minutes

11:40 a.m.

12:30 p.m.

0 hours 50 minutes

1:42 p.m.

2:18 p.m.

3 hours 36 minutes

8 hours 50 minutes

RECONSTITUTED JURY

May 16, 1986

Commencement of deliberations

Announcement of verdict

Elapsed time

Total time of deliberations

10:13 a.m.

12:24 p.m.

2 hours 9 minutes

2 hours 9 minutes

ARGUMENT

“It is of course settled that in all serious criminal

cases, state or federal, the sixth and fourteenth amend-

ments to the [federal] Constitution entitle the accused to

a trial by jury. Johnson v. Duckworth, 650 F.2d 122, 124

(7th Cir. 1981) (citing Duncan v. Louisiana, 391 U.S. 145,

156, 88 S.Ct. 1444, 1451, 20 L.Fd.2d 491, 500 (1968)). “To

determine whether a certain feature of a jury system com-

ports with constitutional requirements, ‘the relevant in-

quiry ...must be the function that the particular feature

performs and its relation to the purposes of the jury

trial.” Wiiliams v. Florida, [399 U.S. 78, 99-100, 90 S.Ct.

1893, 1905, 26 L.Ed.2d 446, 459-60 (1970)}. States [sic]

another way, where a state’s practice ‘presents a ... threat

to preservation of the substance of the jury trial guar-

antee,” Burch v. Louisiana [441 U.S. 130, 138, 99 S.Ct.

1623, 1628, 60 L.Fd.2d 96, 103 (1979) ], it must be struek

down.” Johnson at 124.

In United States v. Phillips, 664 F.2d 971 (Sth Cir.

1981), cert. denied, 475 U.S. 1136 & 1149 U.S. 906, 102

S.Ct. 2965 & 103 S.Ct. 208, 73 L.Fd.2d 1354 & 74 L.Ed.2d

166 (1982), the Fifth Cireuit upheld the facial constitu-

tionality of criminal juror substitution under the federal

Constitution in reliance upon the reasoning of the Cali-

fornia Supreme Court in People v. Collins, 17 Cal.3d 687,

131 Cal. Rptr. 782, 552 P.2d 742 (1976), cert. den., 492 U.S.

1077, 97 S.Ct. 820, 50 L.Fd.2d 796 (1977), “that a defen-

dant’s fundamental right to a unanimous verdict by a

twelve-person jury is not violated where the jury is in-

structed to begin anew with its entire process of delibera-

tion and where the substituted alternate juror participates

6

fully in those deliberations.’ Phillips at 992 n.17 (em-

phasis added). See United States v. Kopituk, 690 F.2d

1289, 1309 (11th Cir. 1982); United States v. Barone, 83

FLR.D. 565, 571 n.1 (S.D. Fla. 1979).

The California Supreme Court in People v. Collins

noted that, although the question in that case was

controtled by the state constitution, the result reached

satisfied minimum federal constitutional standards.

131 Cal.Rptr. at 785 n.8, 552 P.2d at 745 n.3. The court

discussed in depth the defendant's right to trial by

jury in the context of substitution of alternates. The

court stated that the essential elements of that right

included the requirement that the jury consist of

twelve persons and that it reach a unanimous verdict.

Those clements were viewed by the court as constitu-

ent parts of a broader right requiring that each of

the twelve jurors engaged in all of that jury’s de-

liberations. The court stated:

The requirement that 12 persons reach a unani-

mous verdict is not met unless those 12 reach

their conseusus through deliberations which are

the common experience of all of them. It is not

enough that 12 jurors reach a unanimous verdict

if 1 juror has not had the benefit of the delibera-

tions of the other 11. [Deliberations provide the

jury with the opportunity to review the evidence

in light of the perception and memory of each

member. Equally important in shaping a mem-

ber’s viewpoint are the personal reactions and

interactions as any individual juror attempts to

persuade others to accept his or her viewpoint.

The result is a balance easily upset if a new juror

enters the decision-making process after the 11

others have commenced deliberations.] The ele-

ments of number and unanimity combine to form

an essential element of unity in the verdict. By

this we mean that a defendant may not be con-

vieted except by 12 jurors who have heard all

7

the evidence and the argument and who together

have deliberated to unanimity.

Id. 131 Cal.Rptr. at 786, 552 P.2d at 746. The court

concluded that a defendant’s fundamental right to a

unanimous verdict by a twelve-person jury is not vio-

lated where the jury is instructed to begin anew with

its entire process of deliberation and where the sub-

stituted alternate juror participates fully in those

deliberations. [Phillips at 992 n.17].

The excerpt above from Collins relied upon by the

Fifth Cireuit has also been adopted by the New Jersey

Supreme Court as the ‘‘controlling rationale’’ of its crim-

inal juror substitution rules. State v. Corsaro, 107 N.J.

339, 349-50 (June 23, 1987); State v. Trent, 79 N.J. 251,

256 (1979). Thus, the same elements of collectivity and

mutuality in the jury deliberative process, #.e., the full par-

ticipation of the alternate juror, are constitutionally re-

quired by both the United States and New Jersey Consti-

tutions.

The issues of criminal juror substitution are best un-

derstood in the context of “the integrity of jury delibera-

tions and the continuing condition of collectivity and mu-

tuality among the individual jurors as integral aspects of

the deliberative process within the jury. To allow juror

substitution at an advanced stage of deliberations would

be to sanction a rift in the collectivity and mutuality of

the jury’s deliberations and to impose precisely the kind

of extraneous influence upon the deliberative process that

[is] forbidden.” Corsaro at 350-51 (emphasis added).

In both Corsaro and State v. Miller, 79 N.J. 392 (1978),

the New Jersey Supreme Court expressed its concern “that

if the jury deliberates for an extended period of time, it

will have progressed so far in its deliberations that it will

8

have reached determinations. Hence, at that juncture, the

substituted juror will not have “had the benefit of the de-

liberations of the other 11, [citations omitted], and may

indeed be pressured by the amount of time the jury had

deliberated and by the extent of their progress to conform

to their findings and verdict.” Corsaro at 351.

The integrity of jury deliberations is at stake when-

ever a trial court considers the substitution of a juror

after deliberations have commenced. The New Jersey

Supreme Court has adopted the following standard for

trial courts to apply in order to determine whether juror

substitution in a particular case would violate the de-

fendant’s federal and state constitutional guarantees of

a fair and impartial trial by jury:

What Miller and Trent contemplate and caution

against ... is the substitution of a juror in a situa-

tion where the presumption that jurors follow in-

structions is unreasonable or untenable. Thus, where

the deliberative process has progressed for such a

length of time or to such a degree that it is strongly

inferable that the jury has made actual fact-findings

or reached determinations of guilt or innocence, the

new juror is likely to be confronted with closed or

closing minds. In such a situation, it is unlikely that

the new juror will have a fair opportunity to express

his or her views and to persuade others. Similiarly,

the new juror may not have a realistic opportunity to

understand and share completely in the deliberations

that brought the other jurors to particular determina-

tions, and may be forced to accept findings of fact

upon which he or she has not fully deliberated. [Cor-

saro at 352}.

The trial below was not complex. There was only one

defendant, one victim, and one incident between them for

the jury to consider. Since there were no eyewitnesses

9

and defendant denied having sexually assaulted or crim-

inally restrained the victim, the deliberations hinged upon

the jury’s evaluation of their credibility as witnesses. The

original jury deliberated over this issue for 8 hours 50

minutes over a period of two days without returning a

verdict.

Immediately prior to the commencement of delibera-

tions on the third day, a juror was discharged and re-

placed by an alternate over defendant’s objection: in ac-

cordance with New Jersey Court Rule 1:8-2(d), which

provides, imter alia, that “[i]f the alternate jurors are not

discharged and if at any time after submission of the case

to the jury, a juror dies or a juror is discharged by the

court because he is ill or otherwise unable 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 de-

ceased or discharged.’’ (emphasis added). ‘‘The rule

is discretionary with the trial court because a situation

might arise where it would be unwise to utilize this

procedure. The longer the period of time the jury delib-

erates, the greater the possibility of prejudice should a

juror be substituted or replaced.’’ Jdiller, 76 N.J. at 407.

See Corsaro at 348-49 (quoting Miller).

The length of time that the original jury deliberated

over the credibility of the victim as avainst that of de-

fendant, 7.e., 8 hours 50 minutes, strongly suggests that

many, if not all, of the jurors had made actual fact-findings

or reached determinations of guilt or innocence. There-

fore, it was unreasonable and an abuse of the trial court’s

discretion for it to presume that the alternate juror would

have a fair opportunity to express his views, persuade

others, or understand and share completely in the delib-

10

erations that brought the other jurors to particular de-

terminations.

Rather, the circumstances were such that the alternate

juror was likely to be confronted by closed or closing minds

and ‘‘be pressured by the amount of time the jury has

deliberated and by the extent of their progress to conform

to their findings and verdict.’’ Corsaro at 351. Since the

original jury had reached an advanced state of its delib-

erations, ‘‘the likelihood that deliberations would truly

‘begin anew’ was so remote... as to foreclose juror sub-

stitution.’? Jd. at 354.

The reconstituted jury was instructed by the trial court

to ‘‘{[b]Jegin [its] deliberations again as if [the jury was]

now entering the jury room for the first time directly

after listening to [the court’s] charge.’’ However, it

returned a verdict after only 2 hours 9 minutes of deliber-

ations, thereby demonstrating the fact that deliberations

had not ‘‘begun anew’’ and that the substitution had de-

stroyed the collectivity and mutuality of the jury’s delib-

erations.

In State v. Lehman, 108 Wis. 2d 291, 321 N.W.2d 212

(1982), the Wisconsin Supreme Court held that the juror

substitution in that case had prejudiced the defendant.

Its analysis of the periods of each of the juries’ delibera-

tions was as follows:

The eleven regular jurors in this case were ex-

posed to the influence of the discharged juror for a

somewhat longer period of time then they were ex-

posed to the substituted alternate juror. The longer

the period of time the jury deliberates before substi-

tution and the shorter the time of jury deliberation

after substitution, the greater the possibility of preju-

11

dice by the substitution. In this ease the jury delib-

erated one hour and thirty-five minutes before sub-

stitution and one hour and twenty-one minutes after.

* * *

The total time that the alternate juror spent with

the jury in the instant case, one hour and twenty-one

minutes, gives no clear indication whether or not the

jurors began deliberations anew when the alternate

juror joined them or whether they gave conscientious,

careful reconsideration to all the faets of the case.

[821 N.W.2d at 223-24].

In Bulls v. United States, 490 A.2d 197 (D.C. App.

1985), the District of Columbia Court of Appeals held

that the defendant had been prejudiced by the juror sub-

stitution for the following reasons:

The jury’s first deliberation took about 40 min-

utes; the second, about 68 minutes. From all appear-

ances, the alternate missed a significant portion of

the deliberations, and thus we cannot be sure that

the reconstituted jury began deliberations anew, un-

tainted by the original participation of juror number

seven or by coercion of the late arriving alternate.

Absent a voir dire of all the jurors at the time of

the substitution, there was no basis for the trial court’s

conclusion that they had not begun substantial de-

liberations the first day. [Citations omitted]. Nor

did the court instruct the jury, in any event, to begin

its deliberations anew. Nor finally did the recon-

stituted jury’s deliberations take long enough to imply

afresh start. [490 -4.2d at 202].

Federal Rule of Criminal Procedure 24(¢) provides,

inter alia, that ‘‘{a]n alternate juror who does not replace

a regular juror shall be discharged after the jury retires

to consider its verdict.’’ In United States v. Lamb, 529

F.2d 1153 (9th Cir. 1975), the Ninth Cireuit coneluded that

this requirement is mandatory. Therefore, it reversed the

reconstituted jury’s verdict of guilty because an alternate

should not have been available to replace the discharged

juror.

However, the Ninth Cireuit noted the obvious coercive

effect suggested by the dichotomy between the length of

the original jury’s deliberations and the length of the re-

constituted jury’s deliberations as follows:

That impermissible coercion upon the alternate

juror in this case was manifestly inherent, and that

there was not the conscientious, careful reconsidera-

tion by the twelve of the newly constituted jury would

seem apparent from the fact that, despite the district

judge’s instruction to the jury to ‘‘begin at the be-

ginning,’’ a jury that had required almost four hours

to reach its initial verdict [which the judge refused

to accept because of his belief that the verdict was

inconsistent with his instructions] needed, after being

reconstituted, only twenty-nine minutes to find the

appellant guilty a second time. (Footnote omitted).

{Lamb at 1156].

The original jury below deliberated for 8 hours 50

minutes. The reconstituted jury deliberated 2 hours 9

minutes. However, in both Lehman and Bulls, the courts

found that the defendants were prejudiced by the relatively

short and equal periods of their juries’ deliberations.

Furthermore, the difference in the deliberative periods

is analogous to that which was found to be inherently

prejudicial by the Ninth Cireuit in Lamb.

‘‘The most substantial concern about substitution of

an alternate juror after deliberations have begun is that

the alternate might be coerced by jury members who might

have already formulated positions or viewpoints or opin-

13

ions.’’ Phillips, 664 F.2d at 995. ‘‘Extreme precautions’’

are necessary in order to negate ‘‘any possible coercive

effect or any undue influence.’’ Jd. at 996. In Lehman,

the Wisconsin Supreme Court summarized these proced-

ures and other critical factors as follows:

In those cases in which courts have concluded that

substitution of an alternate juror during jury delib-

erations may be permitted, one or more of the follow-

ing factors existed: (1) The trial was of significant

duration; (2) the parties expressly and intelligently

consented to the substitution; (3) the trial court ques-

tioned the alternate juror to determine whether he

or she had been prejudiced after the jury began de-

liberations; (4) the trial court exhaustively ques-

tioned each juror as to his or her willingness to begin

deliberations anew, giving due consideration to the

views of the other jurors, including those of the al-

ternate jurors; and (5) the trial court instructed the

jury to set aside prior deliberations and to begin de-

liberations anew. [321 N.IV.2d at 224].

In the instant case, the only precaution taken or factor

present is that the trial court instructed the jury to begin

its deliberations anew. In the absence of the employment of

any of the other potential procedural mechanisms avail-

able to the trial court to obviate the potential danger of

prejudice to the defendant and given the short duration

of the reconstituted jury’s deliberations, it is respect-

fully submitted that the juror substitution in this case vio-

lated defendant’s federal constitutional guarantee of the

right to a fair and impartial trial by jury.

14

CONCLUSION

For all of the foregoing reasons, defendant respect-

fully submits that a writ of certiorari should issue to re-

view the judgment and opinion of the Superior Court of

New Jersey, Appellate Division.

Respectfully submitted,

Jan Aan Bropy

Crccui, Bropy & AGNELLO

34 Park Avenue

P.O. Box 158

Lyndhurst, New Jersey 07071

(201) 939-1550

Attorneys for Petitioner

Joseph P. Pollio

Dated: April 18, 1988

App. 1

APPENDIX

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

A-978-86T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH POLLIO,

Defendant-Appellant.

(Filed Oct. 13, 1987)

Argued September 21, 1987—Decided Oct. 13, 1987.

Before Judges Petrella, Baime and Ashbey.

On appeal from Superior Court of New Jersey, Law

Division, Monmouth County.

Steven E. Nelson argued the cause for appellant

(Karsic, Stone & Susser, attorneys; Mr. Nelson, on the

brief).

Linda K. Calloway, Deputy Attorney General, argued

the cause for respondent (W. Cary Edwards, Attorney

General, attorney; Ms. Calloway, on the brief).

PER CURIAM

Following a lengthy jury trial, defendant was found

guilty of sexual assault (N.J.S.A. 2C :14-2¢e(1)) and erim-

inal restraint (N.J.S.A. 2C:13-2a) and was acquitted of

aggravated sexual assault (N.J.S.A. 2C:14-2a(6)). He

was sentenced to concurrent presumptive custodial terms

of seven and four years respectively. In addition, defend-

App. 2

ant was assessed penalties totaling $50 payable to the

Violent Crimes Compensation Board.

On appeal, defendant contends that: (1) the trial

judge erred when he refused to charge the jury on the

lesser-included offenses of sexual contact and simple as-

sault, (2) there was insufficient evidence to support sub-

mission of the charge of aggravated sexual assault to the

jury, (8) the judge abused his discretion by substituting

a juror during the course of deliberations and by refusing

to order a mistrial, (4) the judge mistakenly exercised

his discretion when he denied the request for a jury view,

(5) the verdict was against the weight of the evidence

and (6) the judge erred by imposing the presumptive

sentence for sexual assault.

Our thorough review of the record convinces us that

all of defendant’s arguments are clearly without merit.

P.2:11-3(e)(2). We affirm. We merely add the follow-

ing brief comments concerning defendant’s argument that

the judge erred when he substituted an alternate for a

sitting juror during the course of the jury’s deliberations.

At the outset, we are tirely satisfied that the judge

properly exercised his discretion in exeusing the sitting

juror. Contrary to th re’s repeated admonitions and

instructions, the juror sous be itside advice and informa-

tion concerning the chara The judge properly ques-

tioned the juror out of the presence of the remaining

jurors and coneluded that the deliberate and flagrant vio-

lation of his instructions required immediate action. We

are fully convinced that the judge acted wisely and pru-

dently in deciding to exeuse the juror.

ne

»

A pp. 3

We are also convinced that the judge conscientiously

exercised his discretion by denying defendant’s request

for a mistrial and substituting the alternate for the sitting

jeror. The applicabie principles are set forth in State v.

Trent, 79 N.J. 251 (1979) and State v. Miller, 76 N.J. 392

(1978) and need not be repeated here. Suffice it to say,

we are convinced, as was the trial judge, that the de-

liberative process had not progressed for such a length

of time or to such a degree that the reconstituted jury

could not begin deliberations anew. See State v. Trent,

supra, 79 N.J. at 256-257. Distinguishable on this basis is

State v. Corsaro, 107 N.J. 339 (1987), where our Supreme

Court found plain error in the substitution of an alternate

for a sitting juror after a partial verdict had been ren-

dered. Jd. at 352-354. In sum, we are fully persuaded

that the trial judge properly applied R.1:8-2(d) and we,

thus, have no occasion to disturb his discretionary deter-

mination.

Accordingly, the judgment of convictions is affirmed.

I hereby certify that the foregoing is a true copy

of the original on file in my office.

s/ Jack G. Trubenbach

Clerk of the Appellate Division

App. 4

SUPREME COURT OF NEW JERSEY

C-600 September Term 1987

27,943

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JOSEPH POLLIO, ON PETITION

FOR CERTIFICATION

Defendant-Petitioner.

FILED

FEB 18 1988

To the Appellate Division, Superior Court,

A petition for certification of the judgment cf A-978-

S6T4 having been submitted to this Court, and the Court

having considered the same;

It is ORDERED that the petition for certification is

denied with costs.

WITNESS, the Honorable Robert L. Clifford, Pre

siding Justice, at Trenton, this 17th day of February, 1988.

I hereby certify that the foregoing

is a true copy of the original on file

in my office.

s/ Stephen W. Townsend /s/ Stephen W. Townsend

Clerk of the Supreme Clerk of Supreme Court

Court of New Jersey