State v. Dangcil, A-56 September Term 2020

• Court: United States State Supreme Court (New Jersey)
• Citation: 248 N.J. 114,256 A.3d 1016
• Docket Number: 085665,A-56 September Term 2020
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Wildemar A. DANGCIL, Defendant-Appellant.
• Decision Date: 16 August 2021

248 N.J. 114
256 A.3d 1016

STATE of New Jersey, Plaintiff-Respondent,
v.
Wildemar A. DANGCIL, Defendant-Appellant.

A-56 September Term 2020
085665

Supreme Court of New Jersey.

Argued June 29, 2021
Decided August 16, 2021

Brian J. Neary argued the cause for appellant (Brian J. Neary, Hackensack, of counsel and on the briefs, and Lois De Julio, on the briefs.)

Jaimee M. Chasmer, Assistant Prosecutor, argued the cause for respondent (Mark Musella, Bergen County Prosecutor, attorney; Jaimee M. Chasmer, of counsel and on the briefs).

Joseph E. Krakora, Public Defender, argued the cause for amici curiae Public Defender of New Jersey and American Civil Liberties Union of New Jersey (Joseph E. Krakora, Public Defender, and American Civil Liberties Union of New Jersey Foundation, attorneys; Joseph J. Russo, Deputy Public Defender, Alison Perrone, First Assistant Deputy Public Defender, John P. Flynn, Assistant Deputy Public Defender, Jeanne LoCicero, and Alexander Shalom, on the brief).

Lawrence S. Lustberg argued the cause for amicus curiae New Jersey State Bar Association (Gibbons and New Jersey State Bar Association, attorneys; Lawrence S. Lustberg, Michael R. Noveck, Newark, and Domenick Carmagnola, Morristown, President, New Jersey State Bar Association, on the brief).

Marissa Koblitz Kingman argued the cause for amicus curiae Association of Criminal Defense Lawyers of New Jersey (Fox Rothschild, attorneys; Matthew S. Adams, of counsel and on the brief, and Marissa Koblitz Kingman and Arrianna T. Diamantis, Morristown, on the brief).

Lila B. Leonard, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Andrew Bruck, Acting Attorney General, attorney; Lila B. Leonard, of counsel and on the brief, and Valeria Dominguez, Mercedes Robertson, Jeffrey Olsen, and Jesse Magliulo, Deputy Attorneys General, on the brief).

Linda A. Shashoua, Special Deputy Attorney General/Acting Assistant Camden County Prosecutor, argued the cause for amicus curiae County Prosecutors Association of New Jersey (Esther Suarez, President, County Prosecutors Association, attorney; Linda A. Shashoua, of counsel and on the brief).

JUSTICE SOLOMON delivered the opinion of the Court.

256 A.3d 1021

248 N.J. 123

Defendant Wildemar A. Dangcil was awaiting trial when the COVID-19 pandemic hit and altered how we live, work, and

248 N.J. 124

conduct criminal trials. Defendant's trial was adjourned for five months and, in the interim, the Judiciary implemented a primarily virtual, hybrid jury-selection process with the aim of balancing public health and defendants’ constitutional rights, while preserving the majority of pre-pandemic practices and procedures.

Defendant's trial was Bergen County's first to utilize the hybrid process. During the virtual phase of jury selection, defense counsel filed an Order to Show Cause challenging the array as not being drawn from a representative cross-section of the community. The trial court rejected the challenge. After the Appellate Division affirmed and remanded for resumption of the trial, defendant was convicted of multiple offenses, including attempted aggravated arson. He was sentenced to an aggregate eighteen-year term of imprisonment.

We granted direct certification, and before us defendant contends that the hybrid jury-selection process deprived him of his rights to presence and representation and failed to ensure him a jury drawn from a representative cross-section of the community. Though the challenge is to the new hybrid process, it is also directed at pre-pandemic practices -- most notably pre-voir dire juror excusals and deferrals --

256 A.3d 1022

that have remained largely unchanged during the COVID-19 crisis.

We are asked to consider those longstanding practices through the new "prism" of COVID-19. We hold that the pre-voir dire disqualification, excusal, or deferral of jurors is not a stage at which defendant is entitled to be present or be represented and that defendant has failed to support his representative-cross-section claim. We therefore affirm.

I.

A.

Following a domestic incident not relevant to this appeal, defendant was charged in an August 2019 Bergen County indictment with second-degree resisting arrest/eluding, contrary to

248 N.J. 125

N.J.S.A. 2C:29-2(b) ; fourth-degree contempt for violating an order entered under the Prevention of Domestic Violence Act of 1991, contrary to N.J.S.A. 2C:29-9(b) ; third-degree terroristic threats, contrary to N.J.S.A 2C:12-3(a) ; second-degree attempted aggravated arson, contrary to N.J.S.A. 2C:5-1(a)(1) and N.J.S.A. 2C:17-1(a)(1) ; and first-degree attempted murder, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3.

Jury selection for defendant's trial was scheduled for April 20, 2020, but this Court suspended new jury selections and trials on March 12, 2020 in response to the COVID-19 pandemic. See Sup. Ct. of N.J., Notice -- COVID-19 Coronavirus -- Status of Court Operation -- Immediate and Upcoming Plans, at 1 (Mar. 12, 2020). Defendant's case was adjourned until the resumption of jury trials.

On July 22, 2020, this Court established a plan to resume criminal and civil jury selections using a hybrid process intended to "maintain[ ] the core components of pre-pandemic jury operations ... modified to protect the health and safety of jurors, attorneys, parties, and all court users." Sup. Ct. of N.J., Order -- Resuming Criminal and Civil Jury Trials, at 1-2 (July 22, 2020). Under the predominately virtual selection process, jurors were to be summoned consistent with pre-pandemic practices, except that they were to receive a summons notice informing them of both the virtual jury-selection process and socially distanced trials. Id. at 4. Prospective jurors also received a COVID-19 questionnaire. Ibid. Court administration and assignment judges were tasked with prescreening jurors for technological access and knowledge, and with providing devices and broadband access as necessary. Id. at 2-3.

Judiciary staff prescreened jurors for trial availability, medical inability, and other considerations consistent with pre-pandemic protocols, with COVID-19 concerns "not related to substantiated medical inability" brought before a judge and all case-specific questioning conducted during virtual voir dire before a judge, counsel, and the parties. Id. at 4-5. Following virtual voir dire, a fraction of prospective jurors reported in person to courts for the

248 N.J. 126

final phase of selection with facemask and social-distancing precautions observed. Id. at 2, 5. The plan was produced in coordination with the Judiciary's Post-Pandemic Stakeholder Coordinating Committee, which included representatives from the Attorney General's Office, Office of the Public Defender (OPD), County Prosecutors Association of New Jersey (CPA), and New Jersey State Bar Association (NJSBA). Sup. Ct. of N.J., Notice -- Resuming Criminal and Civil Jury Trials, at 3 (July 22, 2020).

Additional guidance was provided several weeks later, specifying that jurors who did not meet the disqualification criteria of N.J.S.A. 2B:20-1 or were seeking excusal under N.J.S.A. 2B:20-10 were required to contact the Jury Management Office and supply substantiating documentation.

256 A.3d 1023

Sup. Ct. of N.J., Notice -- COVID-19 -- Update on Resumption of Criminal and Civil Jury Trials; Next Steps, at 1-2 (Sept. 11, 2020). Jurors were contacted regarding the virtual format and related safety precautions and advised that they needed to submit a note from a healthcare provider to substantiate claims of medical inability to report. Id. at 2. Jurors were also prescreened for technological capability, including familiarity with virtual conferencing platforms, access to a private internet connection, and possession of a device with a functioning web camera, speaker, and microphone. Id. at 2-3. The Judiciary provided tablets and broadband to prospective jurors as necessary. Id. at 3. New Jersey's first jury trial was set to begin in Bergen County on September 21, 2020. Ibid.

B.

Defendant's trial was selected as the first to be conducted in Bergen County. During pretrial conferences on September 16 and 18, defense counsel advised that defendant intended to challenge the hybrid jury-selection process, but no such challenge was filed. Finally, on the morning of September 21 -- after thirteen prospective jurors were interviewed over the course of two hours -- defense counsel filed an Order to Show Cause challenging the array and sought a stay. A hearing was scheduled for September

248 N.J. 127

28, but selection continued over four days with 178 prospective jurors interviewed and sixty-three selected for in-person questioning to be conducted on September 29.

In advance of the hearing, Brian McLaughlin, manager of jury programs for the Administrative Office of the Courts (AOC), and...