NOT FOR PUBLICATION WITHOUT THE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-2781-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DALE A. ROBERTS,
Defendant-Appellant.
_______________________________
Submitted September 12, 2017 – Decided September 20, 2017
Before Judges Fisher and Fasciale.
On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
15-10-1795.
Joseph E. Krakora, Public Defender, attorney
for appellant (Peter T. Blum, Assistant Deputy
Public Defender, of counsel and on the brief).
Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
After having been found guilty by a jury, defendant appeals
from his convictions for third-degree theft of movable property,
N.J.S.A. 2C:20-3(a) (Count One); third-degree forgery, N.J.S.A.
2C:21-1(a)(2) (Count Two); and third-degree uttering a forged
instrument, N.J.S.A. 2C:21-1(a)(3) (Count Three). The judge
granted the State's motion for an extended term, treated defendant
as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), and
sentenced defendant to an aggregate seven-year prison term with
twenty-eight months of parole ineligibility.1 We affirm, but
remand for re-sentencing.
On appeal, defendant raises the following arguments:
POINT I
A NEW TRIAL SHOULD OCCUR BECAUSE THE [JUDGE]'S
FAILURE TO ACT WHEN A JUROR WAS HAVING A
PROBLEM HEARING DEPRIVED [DEFENDANT] OF A FAIR
JURY. U.S. CONST. AMENDS. VI, XIV; N.J. CONST.
ART. I, [¶¶] 1, 10. ([N]ot raised below)[.]
POINT II
[DEFENDANT]'S SENTENCE SHOULD NOT HAVE A
PAROLE DISQUALIFIER - - AS THE [JUDGE]
ORIGINALLY INTENDED - - BECAUSE THE [JUDGE]
IMPOSED A DISQUALIFER ONLY WHEN INCORRECTLY
INFORMED THAT IT WAS MANDATORY.
The State concedes the contention raised by defendant in
Point II. As a result, we remand and direct the judge to re-
sentence defendant accordingly. We focus instead on defendant's
argument in Point I. We review this contention for plain error
because defense counsel did not object during the trial. R. 2:10-
1
The judge merged Counts Two and Three and imposed this sentence
on Count One.
2 A-2781-16T3
2. Under the facts of this case, we see no error, let alone plain
error.
Defendant used the victim's home for several months. While
there, defendant located the victim's checkbook, which she had
stored in a kitchen drawer. Defendant wrote himself thirteen
checks totaling approximately $5000 and cashed them without the
victim's knowledge. After the victim confronted defendant about
what he had done, defendant wrote her a letter admitting to his
wrongdoing.
The trial occurred over three days in September 2016. As
part of the judge's preliminary jury instructions before any
witnesses testified, the judge instructed the jury to "pay careful
attention to all of the testimony." The judge also instructed the
jury, "[i]f you are unable to hear a witness, I ask that you
indicate this to me by raising your hand so that I may instruct
the witness to speak louder and/or clearly."
The State presented testimony from two witnesses: the victim
and a sergeant. The assistant prosecutor called the victim as the
State's first witness. The victim finished her testimony at
approximately 12:10 p.m., and the assistant prosecutor then
informed the judge that testimony from the sergeant would take
longer than twenty minutes. As a result, the judge released the
jury for an early lunch.
3 A-2781-16T3
As the jury was exiting the courtroom, the judge and the
assistant prosecutor briefly discussed the anticipated testimony
from the sergeant. A court clerk then stated to the judge and
counsel:
THE CLERK: Juror [twelve] is saying that he
can't hear you guys so if you could talk
louder. He said you are all coming in very
low.
[DEFENSE COUNSEL]: Who is juror [twelve]?
[ASSISTANT PROSECUTOR]: He's the older
gentleman.
[THE JUDGE]: With the sleeve on.
THE CLERK: Just keep your voices up.
[DEFENSE COUNSEL]: Okay.
[Emphasis added.]
The jury returned after lunch and the assistant prosecutor
called the sergeant to the witness stand. The judge immediately
instructed the jury, "[i]f any juror is having difficulty hearing
anything, just raise your hands and let me know, . . . we'll
endeavor to speak loudly so you can hear without straining." Juror
number twelve did not indicate that he was unable to hear the
victim's testimony, he did not raise his hand during the victim's
testimony, and he did not raise his hand after the judge gave this
instruction.
4 A-2781-16T3
Defendant contends for the first time that the judge's
"failure to act[,]" in response to juror twelve's remarks to the
clerk, deprived him of a fair trial. He argues that he is therefore
entitled to a new trial. The premise of defendant's contention
implies, without any credible basis in the record, that juror
number twelve may have been unable to fulfill his duty as a fact
finder. Defendant argues that the court had an obligation to
question juror number twelve, and determine whether the juror
could hear the testimony from the victim.
Under the United States Constitution, defendants have a due
process right to an "impartial and mentally competent" tribunal.
Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S. Ct. 651, 652,
56 L. Ed. 1038, 1042 (1912) (citing U.S. Const. amend. XIV). We
have previously noted that jury irregularity, such as sleeping,
may violate a defendant's federal and state constitutional rights
to a fair tribunal if it results in prejudice. State v. Scherzer,
301 N.J. Super. 363, 486-87 (App. Div.), certif. denied, 151 N.J.
466 (1997) (citing U.S. Const. amend. VI; N.J. Const. art. I, ¶
10). Here, however, there was no such jury irregularity or
prejudice.
The State concedes in general that a juror's inability to
hear may be analogous to a juror who sleeps through a critical
part of the trial. In such a case, where a juror is inattentive
5 A-2781-16T3
and a judge notices the inattentiveness, that judge "will have
broad discretion to determine the appropriate level of
investigation and corrective action that must be taken." State
v. Mohammed, 226 N.J. 71, 89 (2016). Defendant does not suggest
that the judge personally observed evidence of inattentiveness on
behalf of juror number twelve. If a party alleges a juror is not
paying attention, or cannot pay attention, and "[i]f the judge did
not personally observe the juror, the judge should conduct an
individual voir dire to determine if the juror was inattentive,
and make appropriate findings." Ibid. Defendant is not arguing
that he or his counsel alleged during the trial that juror number
twelve failed to hear testimony or otherwise pay attention at any
point during the trial.
Instead, there is no evidence that the judge, defendant, or
the attorneys noticed any juror irregularity. On this record,
there is no credible evidence suggesting that juror number twelve
was sleeping, inattentive, distracted, dozing, intoxicated, unable
to participate in the trial, or unable to hear testimony from the
witnesses. Instead, juror number twelve's remarks to the court
clerk pertained solely to the communication between the judge and
counsel, which prompted the clerk to tell them to "keep your voices
up."
6 A-2781-16T3
Importantly, defense counsel responded "[o]kay" to the
clerk's comments and instruction to "keep your voices up." Defense
counsel herself did not show or express any concern that juror
number twelve missed the testimony from the victim or other
critical parts of the trial. That is not surprising because the
judge repeatedly instructed the jurors to raise their hands if
they had difficulty hearing testimony from the witnesses, and
juror number twelve did not raise his hand to indicate he had a
problem hearing the witnesses. Moreover, we would not expect
defense counsel to conclude juror twelve was unable to hear the
victim's testimony because it is reasonable to conclude that the
juror's remarks to the clerk referred to the communication between
the judge and counsel.
Moreover, when the trial proceeded after the lunch recess,
and before the sergeant began testifying, defense counsel did not
object to the judge's instruction to the jury that "[i]f any juror
is having difficulty hearing anything, just raise your hands and
let me know, . . . we'll endeavor to speak loudly so you can hear
without straining." We may presume based on trial counsel's
failure to object to the judge's jury instruction that defense
counsel did not consider the appellate issue related to juror
number twelve to have deprived defendant of a fair trial or to
have been prejudicial. See, e.g., State v. McGraw, 129 N.J. 68,
7 A-2781-16T3
80 (1992) (finding that defendant's failure to object to a jury
charge "gives rise to a presumption that he did not view its
absence as prejudicial to his client's case").
Consequently, there is no basis for a new trial. That is
especially so because of the overwhelming evidence of defendant's
guilt. The State's proofs included defendant's letter, which the
State introduced into evidence without objection, where defendant
wrote to the victim, "[d]id I steal the checks? Absolutely. I
was dead wrong and I'm sorry."
We affirm the convictions, but remand for re-sentencing in
accordance with this opinion. We do not retain jurisdiction.
8 A-2781-16T3
STATE OF NEW JERSEY VS. DALE A. ROBERTSÂ (15-10-1795, MONMOUTH COUNTY AND STATEWIDE)
Combined Opinion