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(NOTE: The status of this decision is Unpublished.) NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4447-08T44447-08T4 STATE OF NEW JERSEY, Plaintiff-Appellant, v. JAMAL R. TAYLOR, Defendant-Respondent. ___________________________________

Submitted October 27, 2009 - Decided Before Judges Skillman and Fuentes. On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-06-831-I. Robert D. Bernardi, Burlington County Prosecutor, attorney for appellant (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief). Yvonne Smith Segars, Public Defender, attorney for respondent (Cecelia Urban, Assistant Deputy Public Defender, of counsel and on the brief). PER CURIAM By leave granted, the State appeals from the order of the Law Division, Criminal Part granting defendant Jamal R. Taylor's motion for a new trial based on alleged misconduct by one of the jurors who deliberated and rendered a verdict in this case. After reviewing the record before us, we affirm.

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Defendant was tried in absentia before a jury on December 14, 19, and 20, 2006. On the last day of trial, the jury returned a verdict finding defendant guilty of third-degree possession of cocaine, in violation of 36 N.J. 266, 272 (1961) (quoting State v. Smith, 29 N.J. 561, 573, cert. denied, 361 U.S. 861, 80 S. Ct. 120, 4 L. Ed.2d 103 (1959)); see also State v. Thompson, 142 N.J. Super. 274, 282 (App. Div. 1976). The decision to grant a new trial based on jury taint resides in the discretion of the trial court, but . . . "if 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." [State v. R.D., 169 N.J. 551, 558 (2001) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)).] One of the bases for granting a motion for a new trial is the omission or falsification of material information by a juror during voir dire that "had the potential to be prejudicial" and if disclosed, would have given counsel a reasonable basis to exercise a peremptory challenge to exclude the juror. State v. Cooper, 151 N.J. 326, 349 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed.2d 681 (2000); see, e.g., In re Kozlov, 79 N.J. 232, 239 (1979); Wright v. Bernstein, 23 N.J. 284, 293-96 (1957); State v. Bianco, 391 N.J. Super. 509, 521-22 (App. Div.), certif. denied, 192 N.J. 74 (2007); State v. Scher, 278 N.J. Super. 249, 262-68 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995). Where a juror on voir dire fails to disclose potentially prejudicial material . . . a party may be regarded as having been denied a fair trial. This is not necessarily because of any actual or provable prejudice to his case attributable to such juror, but rather because of his loss, by reason of that failure of disclosure, of the opportunity to have excused the juror by appropriate challenge, thus assuring with maximum possible certainty that he be judged fairly by an impartial jury. [Cooper, supra, 151 N.J. at 349 (internal citations and quotations omitted).] Here, we agree with the trial court that S.W.'s bias or hostility against either this particular defense counsel, or criminal defense attorneys as a class, if disclosed during voir dire, would have most likely resulted in his exclusion from this jury panel based on counsel's exercise of one of her preemptory challenges. Indeed, such bias would have constituted sufficient grounds to excuse S.W. for cause. We reject the State's argument that the trial court erred in failing to interrogate the other eleven jurors to ascertain whether S.W.'s bias tainted the entire jury. This argument ignores defendant's constitutional right to a fair and impartial jury, which requires that all twelve jurors adhere to their oath to scrupulously follow the court's instructions on the law and to base their ultimate judgment only on the evidence presented in court.

Affirmed.

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(continued) (continued) 7 A-4447-08T4 March 2, 2010 0x01 graphic

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