State v. Bellamy

616 A.2d 1323, 260 N.J. Super. 449
CourtNew Jersey Superior Court Appellate Division
DecidedNovember 25, 1992
StatusPublished
Cited by11 cases

This text of 616 A.2d 1323 (State v. Bellamy) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bellamy, 616 A.2d 1323, 260 N.J. Super. 449 (N.J. Ct. App. 1992).

Opinion

260 N.J. Super. 449 (1992)
616 A.2d 1323

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
NICHOLAS WILLIAM BELLAMY, DEFENDANT-APPELLANT.

Superior Court of New Jersey, Appellate Division.

Submitted October 27, 1992.
Decided November 25, 1992.

*450 Before Judges ANTELL, DREIER and SKILLMAN.

Zulima V. Farber, Public Defender, attorney for appellant (Steven M. Gilson, designated counsel, of counsel and on the brief).

Andrew K. Ruotolo, Jr., Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel).

The opinion of the court was delivered by ANTELL, P.J.A.D.

*451 On November 23, 1988, defendant was a passenger in the front seat of an automobile driven by codefendant John Watson (hereinafter "the driver"). That evening, the vehicle was stopped by State Troopers Michie and Miller for speeding on the New Jersey Turnpike in Elizabeth at 11:53 p.m. As the troopers approached the car, Michie, who was on the passenger's side of the vehicle, noticed the driver moving his right hand toward his inside jacket pocket. When Michie alerted Miller, who was on the driver's side of the car, of what he had just seen, Miller took the driver out of the car and led him to the rear of the car to perform a protective patdown. As he touched the left breast pocket area of the driver's open jacket Miller felt a large, hard object. The driver then reached into the jacket, presumably to seize the object, but at Miller's order withdrew his hand. Trooper Miller thereupon took a .22 calibre handgun from the inside pocket of the driver's jacket.

After Miller secured the driver's gun, Michie asked defendant to step out of the car. The troopers' ensuing search of the vehicle revealed a bag filled with cocaine in the arm rest compartment located on the driver's side door. Defendant later informed Trooper Miller that his credentials were in his jacket on the back seat of the car. When the officer picked up the jacket he found another .22 calibre handgun in the garment's pocket.

Defendant now appeals from his conviction for possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5(a)(1), and 2C:35-5(b)(1), on which he was sentenced to a ten-year custodial term with a parole ineligibility period of three and one-third years. Defendant was also assessed a DEDR penalty of $3000, a laboratory fee of $50, and a VCCB penalty of $30. Additionally, his driver's license *452 was suspended for two years.[1]

Defendant's first contention on this appeal is that he was denied his right to a trial by an impartial jury because the prosecution exercised peremptory challenges on constitutionally-impermissible grounds in violation of State v. Gilmore, 103 N.J. 508, 511 A.2d 1150 (1986).

Sixteen blacks were included among the sixty-eight members of defendant's jury panel. During the selection process, the prosecutor peremptorily excused four black women, Felicia Simon, Elmethia Lewis, Rosa Mitchell, and Lois Mason McLeod. When defense counsel objected, the court called upon the prosecutor to articulate his explanation for exercising the peremptory challenges. In so doing, the court followed the mandate of State v. Gilmore, supra, 103 N.J. at 537-38, 511 A.2d 1150. The prosecutor then gave the following explanations:

Felicia Simon
I knocked her off because she was young, and I ask your Honor to take note that just about every young person on that jury was knocked off by me. She has a brother who is twenty-three years old and has no job. That puts him in the same general age as the defendants. And I have every reason to believe that may become somewhat of an issue.
Rosa Mitchell
She was number one. At that point, Judge, I counted nine women on the jury and the significant reason why I knocked her off is because she did not appear to me to be a strong personality, which I consider necessary in my trying the case that she was going to occupy the foreperson's spot. She did not come across as a leader.
Lois Mason McLeod
A young woman, I believe. That's why I did. I have it written down here, "young."

As to the fourth black woman, Elmethia Lewis, both the defense attorney and the prosecutor agreed that "it was obvious that she had trouble indicating whether she was going to be fair and impartial." The court thereupon found that the prosecutor had satisfactorily explained the questioned challenges, *453 and denied defendant's motion to begin the proceedings anew with a fresh jury panel. In so ruling, the court made the following observations:

It's been shown in terms of attitude that people, young individuals, tolerate drugs, have different feelings about it.
I also note for the record the defense has been knocking out a lot of senior citizens peremptorily in terms of their challenges for the same reasons.
So that's something that goes on in this court all the time. So I don't hold it against ... [the prosecutor] simply because these people happen to be young, happen to be young and black.

The record supports the trial court's determination that the prosecutor did not peremptorily excuse the four black women because of their color. The jury that heard the case contained seven black members, five of whom participated in deliberations.

Defendant argues that "young" people form a cognizable group within the meaning of State v. Gilmore, and that by allowing the prosecutor to challenge them peremptorily the court denied defendant the right to a trial by a fair and impartial jury representing a cross-section of the community. In State v. Ramseur, 197 N.J. Super. 565, 485 A.2d 708 (Law Div. 1984), dealing with a claim by defendant that he had been denied his right to a fair and impartial jury and equal protection of the laws by the county's jury selection procedures, the court noted that "[n]o evidence was offered and this court does not find young people to be a distinctive group for the purpose of this Sixth Amendment challenge to the jury selection system." Id. at 578-79, 485 A.2d 708. In affirming in material part, the Supreme Court wrote that "[t]o prove either an equal protection or fair cross-section claim, a defendant must first identify a constitutionally cognizable group, i.e., a group capable of being singled out for discriminatory treatment." State v. Ramseur, 106 N.J. 123, 215, 524 A.2d 188 (1987). But more recently, in State v. Zavala, 259 N.J. Super. 235, 611 A.2d 1169 (Law Div. 1992), the Law Division wrote: "Although young persons do not constitute a cognizable group, the prosecution's admitted exclusion of all young persons from the jury constitutes an *454 exclusionary tactic based on group bias" 259 N.J. Super. at 242, 611 A.2d at 1173.[2]

The question of whether age-defined groups may be considered cognizable for our purposes was carefully considered in State v. Pelican, 154 Vt. 496, 580 A.2d 942 (1990). There, the Supreme Court of Vermont noted that with few exceptions both state and federal courts have held that age by itself is an insufficient standard by which to establish a distinctive group.

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Bluebook (online)
616 A.2d 1323, 260 N.J. Super. 449, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bellamy-njsuperctappdiv-1992.