NOT FOR PUBLICATION

PER CURIAM.

In this criminal appeal, we consider again the appropriateness of juror substitution after the deliberating jury has announced a deadlock. See State v. Banks, 395 N.J.Super. 205 (App. Div.) (reversing conviction because alternate juror substituted after jury announced it was unable to reach a unanimous verdict), certif. denied, 192 N.J. 598 (2007). After hearing slightly over six days of testimony, the jury announced it was unable to reach a unanimous verdict on the fifth calendar day of deliberations. The court delivered a modified Czachor charge. See State v. Czachor, 82 N.J. 392 (1980). Then, near the end of the day, one juror reported she was too ill to continue to deliberate. The next morning, after the juror reported by telephone she was still ill, the court seated an alternate, and instructed the jury to start anew. On the fourth day of deliberations after the substitution, the jury found defendant guilty on all counts of the indictment.

As we did in Banks, supra, we hold it was error under the circumstances to substitute a juror after the jury announced it was deadlocked. The jury had proceeded too far to expect the newly seated juror to be a full and equal participant in deliberations. We therefore reverse and remand.

I.

An October 31, 2006 Middlesex County indictment charged that defendant, on October 30, 2003 in Woodbridge Township, committed the first degree murder of Alesky Bautin and Sergey Barbashov, N.J.S.A. 2C:11-3(a)(1),(2) (counts one and two). The indictment also charged second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); third degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); and third degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(1) (count five).1

The trial presented significant credibility issues for the jury. The State's theory was that defendant shot and killed Bautin and Barbashov after mistaking them for someone who had threatened him with a gun almost a month earlier, on October 1, 2003. The State established Bautin and Barbashov were killed while seated in a red 1999 Volkswagen Passat parked outside Building 12 of the Forest View apartment complex in Woodbridge.

Defendant had reported the gun threat to police on October 2, 2003. According to defendant, he believed the man was involved in the burglary of a friend's house. Defendant and several other individuals — including Jamil McKnight, Greg Wakefield and Sherrill Williams — pursued the man in three cars. The man drove a burgundy Ford Taurus or Mercury Sable that defendant had seen many times before in the neighborhood. The four cars ultimately came to a stop on Rahway Avenue, and the man exited, waving a gun at defendant and the others. In defendant's attempt to flee, he collided with another vehicle.

In tying defendant to the fatal shooting later that month, the State relied on the testimony of McKnight, who admitted he was present during the gun-waving incident. McKnight was visually impaired and testified he did not see the gun. However, he alleged that defendant identified the person who waved the gun as Mitchell Wright, who also lived in the Forest View complex.

With respect to the shooting weeks later, McKnight admitted he retrieved the gun used in the shooting, supplied the vehicle, was present during the shooting, disposed of the weapon, and witnessed Ross discard the spent shells. He testified that while he, defendant, Sherrill Williams, and Ron Huff were driving around the neighborhood on October 30, 2003, defendant said he spotted the individuals who had threatened him weeks earlier. McKnight testified that defendant insisted on returning to McKnight's house, so McKnight could retrieve a handgun that McKnight was keeping for him. Huff left the vehicle. Williams remained at McKnight's home. Defendant and McKnight drove back to the apartment complex, where defendant shot into a vehicle roughly three feet away.

McKnight stated he and defendant drove off; they discarded the gun in a hole in a hill; they then briefly visited a friend, Greg Wakefield. McKnight testified that, without consulting with defendant, McKnight retrieved the gun before dawn on October 31. He took it with him to work in New York City that day, stored it in his locker, and then took it to a person whom he knew from Queens, New York only by the first name of Dante. There, with Williams present in the house, he gave the gun to Dante to discard.

The defense attempted to discredit McKnight in several ways. McKnight had given three inconsistent sworn statements to police. In his first two statements, he withheld mention of Williams, who was present at the October 1 incident, as well as on October 30. He also withheld mention of his role in hiding and discarding the weapon. McKnight admitted that he and Williams had known each other for many years, dating back to when they lived in Jamaica, New York, and Williams was living at McKnight's house in Woodbridge. Williams had been involved in criminal activity, and McKnight feared that Williams would retaliate and harm him if McKnight implicated him in any way. The defense highlighted McKnight's personal exposure to prosecution, and the favorable resolution, in the form of admission to pre-trial intervention, he received in return for his cooperation. As we discuss in greater detail below, defendant suggested that McKnight and Williams, not himself, participated in shooting the victims. In cross-examination of one of the investigating police officers, defense counsel also elicited that Williams, who did not testify at trial, gave police a statement that McKnight — as opposed to defendant — owned the nine millimeter handgun.

The State also relied on the testimony of defendant's former girlfriend, Sharhi Roberts, who stated defendant admitted shortly after the shooting that he killed the two men, and then repeated his confession a year later, explaining he shot them by mistake. However, Roberts also testified that defendant later said that he "made it up" when he admitted to the shooting.

The defense elicited from Roberts that she provided her incriminating statement in return for dismissal of false alarm charges against her. After Roberts testified that her criminal defense attorney advised her to tell investigators what they wanted to hear, the State called the attorney, who denied so advising his client. However, the attorney did testify that his client received harsher treatment than was typical of a person charged with a false alarm offense in an effort to secure her cooperation, and he advised her that if she were not able to provide incriminating information about defendant, she should not waste the time giving a statement.

Huff testified that he was in the vehicle when defendant repeatedly said "red Jetta," and said defendant saw "the same people from Rahway Avenue," although Huff was unaware of what happened there. He testified that defendant asked McKnight "you still got that at your house," McKnight responded in the affirmative, and defendant said, "Let's go get it." After the vehicle stopped in front of a house, Huff left the vehicle because the conversation had "turned real negative." As he walked alone in the neighborhood, Huff was one of the first persons to come upon the victims after the shooting. He consoled one of the victims, left the scene as police approached, but was then stopped by a police officer nearby.

The defense highlighted that Huff, when police initially questioned him at the scene, and in a sworn statement two days later, disclosed nothing about being in the car with defendant or defendant's alleged statements. He admitted he did not mention his presence in the vehicle until a statement he gave in 2007. He did not claim defendant identified a red Jetta until a statement in 2008. The defense attempted to suggest Huff gave police statements in 2007 and 2008 to avoid exposure to prosecution himself. The defense also raised questions about Huff's credibility by highlighting Huff's claim that McKnight was the driver, when it was apparently undisputed that McKnight was not the driver, because of his poor eyesight.

Wakefield testified that after the shooting, defendant and McKnight dropped by his house. When he testified that defendant appeared calm and did not recall statements by defendant, the State confronted Wakefield with a sworn statement that when defendant appeared at his house shortly after the shooting, he appeared "jumpy," and defendant stated he was "popping off at Forest View." Wakefield understood "popping off" to mean shooting, but believed defendant was joking. The State also elicited that Wakefield asserted, in his prior statement, that he knew defendant owned a nine millimeter handgun. He also told investigators that defendant knew "the two individuals whom he shot were mistakenly shot" and that defendant intended to shoot "Mitch and Bruce." Wakefield also told investigators that defendant asked him to pick up shell casings near the Forest View complex and Wakefield refused.

Although confronted with his prior statements, Wakefield attempted to disavow his prior statements to police. He asserted that police questioned him at length, subjected him to a polygraph, and continued until "they got the one they wanted to hear." The State elicited that Wakefield gave two statements in April 2005, while he faced charges for terroristic threats, resisting arrest, and unlawful possession of a weapon. He entered a plea to the terroristic threats and resisting arrest charges in June 2005, and to the weapons charges in February 2006; was sentenced to prison; and had recently been discharged from parole. As part of his plea agreement, he agreed to give truthful testimony in defendant's case.

On cross-examination, he elaborated that he had been questioned for many hours and was subject to mental "torture" before giving his statements, and felt threatened. He testified that he told investigators and the assistant prosecutor he made up the allegations that defendant stated he was "popping off," and defendant asked him to pick up shells. He also stated that he believed he could have been charged with the homicide himself if he did not cooperate. Defense also elicited that in one of Wakefield's statements, he asserted that defendant appeared at his house alone the night of October 30. Wakefield also confirmed that he was present at the incident on October 1, and that he observed the man with a gun was driving a red Taurus. He also testified that he knew Mitchell Wright drove an old Jetta.

Defendant testified on his own behalf. Defense counsel preemptively elicited that defendant had been convicted in 2006 of a fourth degree crime for which he was sentenced to eighteen months' incarceration without parole.2 He described the October 1 incident. Defendant stated the Taurus or Sable drove by while he and a group of others, including Wakefield, McKnight, and Williams were sitting in front of Wakefield's house, talking. They recognized the people as having burglarized Wakefield's house. He said McKnight and Williams pursued in one car; he pursued in his sister's car with Wakefield; and others pursued in a third car. He denied the man with the gun was Mitchell Wright, but testified that he waved the gun at both his and McKnight's cars.

Regarding the night of the murders, defendant testified he was driving with McKnight, Williams and Huff and they saw a Ford Taurus leaving the Forest View complex. According to defendant, he was driving and McKnight asked to go back to his home. Huff got out of the car before they arrived at McKnight's house. When they arrived, McKnight got out, while defendant and Williams remained in the car. McKnight returned with an item wrapped in a bandana, which defendant believed was a gun. Defendant drove to the home of his friend LaToya McPhatter and got out of the car. Williams got into the driver's seat and drove away with McKnight. LaToya was not at home, so he stayed only briefly and then went to Wakefield's house, where McKnight ultimately arrived. Defendant denied shooting Bautin and Barbashov and said that he would not confuse a Volkswagen Jetta with a Sable or Taurus.

On cross-examination, the State elicited statements defendant made, while incarcerated, in a telephone conversation with his father that apparently was recorded without defendant's knowledge. Defendant told his father he was not in Middlesex County the night of the homicides, despite his own testimony that he was. He also acknowledged to his father that Mitchell Wright was involved in what his father called "the ... shooting at you[.]"

The defense presented one alibi witness, Chaney McPhatter, who was thirteen years old in October 2003. Defendant was friends with her older sister and was a frequent visitor at their home. She testified that she remembered October 30, 2003, because it was mischief night and she was grounded for not cleaning her room. When asked if defendant was at her house that night, she responded "Well, I think I remember seeing him. I don't remember speaking to him." On cross-examination, the State established that in a prior statement, McPhatter told investigators she did not recall defendant visiting her house that night. On redirect, defense counsel established that she never signed her prior statement, and she felt pressured by the presence of upset family members "to give the right answer" so the police would leave and her relatives would calm down.

During summation, defense counsel argued the State's witnesses implicated defendant to avoid being prosecuted themselves. He further suggested Williams and McKnight committed the murders. In response, the State argued defendant sought revenge for the October 1 incident, and mistakenly shot the victims. The prosecutor focused on defendant's consistent confessions to Roberts and Wakefield.

II.

The jury began deliberating late in the afternoon of Wednesday, April 16, 2008, and stopped after only thirty-eight minutes. The jury deliberated the entire next day. They requested and heard a readback of Roberts' entire testimony. After subtracting time for breaks, lunch, and the readback, the jury deliberated almost four-and-a-half hours. The jury deliberated roughly the same amount of time on Friday, in addition to requesting and hearing a readback of all of McKnight's testimony.

The jury returned on Monday, April 21 and deliberated for over five hours. That afternoon the jury asked the court to reread the jury charge with further clarification in layman's terms particularly with respect to reasonable doubt. The judge discussed the request with counsel, and it was agreed that the entire charge would be reread the following morning. The next day, which was the fifth calendar day of deliberations, the jury deliberated for about an hour and a half after the court's re-reading of the entire charge.

The jury then sent out a note that stated: "The jury was unable to reach a unanimous decision on any count. What is your next instruction?" With counsels' consent, the judge instructed the jury to continue deliberations consistent with Czachor, supra.3 The judge stated:

Following the Czachor charge and a lunch break, the jury deliberated for less then two hours and sent a note stating: "Juror No. 5 is sick and does not expect to be here tomorrow. Thank you." The judge discussed the situation with counsel, who both agreed that the jury should be dismissed for the remainder of the day and, if Juror No. 5 was too sick to report the following day, then she should be replaced with one of the alternate jurors. While the jury continued to deliberate, the court also apparently held an off-the-record conference with counsel regarding substituting an alternate for the ailing juror.4 During a discussion with the judge in counsel's presence, Juror 5 reported that she had a "terrible headache" and was nauseous.

Juror No. 5 called the judicial staff the next morning to report she was still sick. At defense counsel's request, the judge telephoned Juror No. 5 in counsels' presence on the record, to confirm her inability to report for jury duty. The juror, who was sixty-four years old, reported that she had a headache, sore throat and nauseous stomach and confirmed that she was too sick to report to jury duty. When the judge asked counsel if they had any other questions for the juror, they responded in the negative.

The judge, relying on State v. Jenkins, 182 N.J. 112 (2004), held that the sick juror could be dismissed on the grounds of illness. He then made the following findings on the issue of substitution:

There were no objections to the substitution. Defense counsel explained:

One of the three alternate jurors was randomly assigned to the jury. The judge gave the following charge prior to the jury resuming deliberations:

The reconstituted jury deliberated for about five hours that day. It deliberated the entire next day, except for a lunch break and a readback of the testimony of Roberts' attorney. The next day, which was a Friday, the jury deliberated from 9:00 a.m. to a little after 4:00 p.m., with morning, lunch, and afternoon breaks. Deliberations recommenced on Tuesday morning and, after about two hours and fifteen minutes of deliberations, the jury rendered its verdict. The jury found defendant guilty on all counts. During the reconstituted jury's deliberations, defense counsel never asked the court to inquire about the prospects for a verdict, nor did he request a mistrial, nor did the jury issue any further reports of deadlock.

After the verdict, defense counsel moved for a new trial, and argued that it was improper to substitute an alternate juror after the jury announced it was unable to reach a unanimous decision pursuant to Banks, supra. Counsel stated that he, the prosecutor and the court had all overlooked the case. The prosecutor responded that Banks was distinguishable because the length of the jury's deliberations demonstrated that the substituted juror was a full participant and the jury had indeed begun its deliberations anew. She also stated when the jury was reconstituted, she and defense counsel were both made aware the jury had discarded notes they had taped to the wall during its initial work, and requested clean verdict sheets.6

In denying the motion, the judge agreed with the State that Banks was factually distinguishable because the basis for removal in that case was a personal bias. Further, unlike Banks, the jury here requested additional instructions when it advised the court it was deadlocked, which indicates that it wanted to continue deliberations. The judge also rejected defendant's interpretation of Banks as establishing a blanket rule barring substitutions after a jury announces a deadlock, concluding a per se rule would be inconsistent with State v. Corsaro, 107 N.J. 339 (1987) and State v. Williams, 377 N.J.Super. 130 (App. Div.), certif. denied, 185 N.J. 297 (2005).

The court sentenced defendant to consecutive terms of life imprisonment with parole-ineligibility periods of eighty-five percent of seventy-five years, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on counts one and two. The court merged the weapons offenses with the murder convictions, and imposed a consecutive term of five years on the hindering charge, count five.

On appeal, defendant presents the following issues for our consideration:

THE STATE COMMITTED PREJUDICIAL MISCONDUCT BY FORCING DEFENDANT TO CHARACTERIZE STATE'S WITNESSES AS HAVING "MADE UP" THEIR HIGHLY INCRIMINATORY TESTIMONY. U.S. CONST., AMEND. XIV; N.J. CONST. (1947), ART. 1, PAR 10. (Not Raised Below).

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

III.

We are persuaded that reversal is required under the circumstances because the court substituted an alternate for the ailing juror after the jury announced a deadlock. We accept as undisputed that the juror was suffering from a genuine illness and could no longer serve. Notwithstanding the length of the jury's deliberations post-substitution, the declaration of a deadlock after over four days of deliberations strongly suggests that some jurors had made up their minds and were incapable of starting anew, and allowing the substitute for the excused juror to become a fully participating member in the deliberations.

Although our Rules of Court permit a court to seat an alternate after deliberations have begun, the practice is circumscribed. Rule 1:8-2(d)(1) states:

As the Court observed in Jenkins, supra, 182 N.J. at 124, the rule balances the interest in judicial economy, and the desire to avoid the costs of a retrial, with the right to a fair jury trial.

However, the Court has "cautioned judges that after deliberations have begun, juror substitution `should be invoked only as a last resort.'" Id. at 126 (quoting State v. Hightower, 146 N.J. 239, 254 (1996)). "The reconstitution of the jury by the substitution of a new juror in the course of the jury's deliberations can destroy the mutuality of the jury's deliberations." Corsaro, supra, 107 N.J. at 349. See also Jenkins, supra, 182 N.J. at 126. That is especially so when the jury has made fact-findings or made determinations of guilt or innocence. Jenkins, supra, 182 N.J. at 132-33. "In such cases, the replacement juror is likely to be confronted with `closed or closing minds.'" Id. at 132 (quoting Corsaro, supra, 107 N.J. at 352).

The court may infer the jury has made fact-findings or determinations based on the length of deliberations. Jenkins, supra, 182 N.J. at 132. "`The longer the period of time the jury deliberates, the greater is the possibility of prejudice should a juror be substituted or replaced.'" Corsaro, supra, 107 N.J. at 351 (quoting State v. Miller, 76 N.J. 392, 407 (1978)). However, the length of deliberations is merely an indicator. The court's focus is also on "`the effect that the progress in deliberations will have on the reconstituted jury's ability truly to begin deliberations anew.'" Jenkins, supra, 182 N.J. at 132 (quoting State v. Valenzuela, 136 N.J. 458, 474-75 (1994)). For that reason, the Court has avoided setting a "bright line rule" establishing the length of deliberations after which seating an alternate is barred. State v. Williams, 171 N.J. 151, 169 (2002).

Alternatively, the issue may be less obscure, because the jury has announced a partial verdict on some counts, or a deadlock on all counts. In such a case, the court need not infer the jury has made decisions, because the jury has explicitly announced it has done so. In Corsaro, supra, the Court held that when the jury had rendered a partial verdict on counts related to the remaining counts,7 jury deliberations had progressed too far to allow substitution of an alternate for a properly excused juror. 107 N.J. at 353. The Court concluded that it would be "unreasonable or untenable" to expect jurors to follow an instruction to begin deliberations anew, notwithstanding the presumption that jurors follow instructions. Id. at 352.

The Court in Jenkins, supra, and we in Banks, supra, held substitution was inappropriate in the face of an apparent deadlock (Jenkins), or an expressly announced one (Banks), because the decision-making process had proceeded too far to accommodate a new entrant. In Jenkins, supra, a juror strongly suggested in a colloquy with the court she was the lone holdout against conviction, although no deadlock was announced. 182 N.J. at 122. Since the remaining jurors had apparently decided to convict, the Court concluded it was "unlikely that a new juror would have `a realistic opportunity to understand and share completely in the deliberations that brought the other jurors' to their viewpoints, or to participate in an open-minded dialogue without a preordained result." Id. at 133 (quoting Corsaro, supra, 107 N.J. at 352). The fact that the jury did return a guilty verdict twenty-three minutes after substitution confirmed the Court's analysis. Jenkins, supra, 182 N.J. at 133.

In Banks, the jury announced it could not reach a unanimous verdict after less than a day of deliberations. 395 N.J. Super. at 211. The court instructed the jury to continue its deliberations. Ibid.8 Later the same day, it became apparent one juror harbored a bias against police. Id. at 212.

Juror number twelve was excused the next day after the court questioned him and the other jurors, and concluded his inability to function was personal and unrelated to his interactions with the other jurors. Id. at 214. The court denied defendant's motion for a mistrial and seated an alternate, instructing the jurors to "`wipe the slate clean' and begin deliberations anew." Ibid. The jurors resumed deliberations and returned a verdict seventy-five minutes later. Ibid.

Relying on Jenkins, supra, and Corsaro, supra, we concluded it was error to substitute a juror after an announced deadlock. "[J]ury deliberations have progressed too far to permit substitution of an alternate juror once a deliberating jury has announced its inability to reach a verdict." Banks, supra, 395 N.J. Super. at 218. We explained that notwithstanding that the deadlocked jury would continue to deliberate, its report reflected "individual jurors have resolved, but not agreed" on the issues before them. Ibid. We concluded,

The State argues alternatively that Banks is at odds with the Court's reluctance to establish bright line rules on the acceptable length of deliberations when substitution may be permitted; and Banks is distinguishable based on differences in reasons the juror was excused, and the length of post-substitution deliberations. We are unpersuaded.

First, the Court's avoidance of a bright line rule on the length of pre-substitution deliberations does not govern here, because, as we have discussed, the length of such deliberations is merely a basis for inferring fact-finding. A judge must necessarily consider the length of deliberations, along with other factors, such as the complexity and number of jury questions, the length of trial, the nature and number of items in evidence, and the presence and nature of jury questions, to infer whether the jury has made fact-findings or determinations that would effectively preclude a new juror from becoming a full participant in the deliberative process. See 6 Wayne R. LaFave et al., Criminal Procedure § 24.9(d) (3rd ed. 2007) (stating trial length, case complexity, volume and nature of evidence, number of counts, number of defendants, and nature of juror communications are factors that may be considered in determining reasonableness of deliberation period).

On the other hand, there is no mystery about whether the jury here reached determinations. It announced as much when it disclosed the jury was unable to reach a unanimous verdict. See Corsaro, supra, 107 N.J. at 351 ("Clearly, the substantial progress toward determinations that is signified by the period of time the jury has been deliberating ... is self-evident when, as in this case, deliberations have actually resulted in announced verdicts."). Evidently, some jurors had determined to resolve the issues one way, and others decided to resolve them the other. By contrast, the Court in Corsaro could not conceive a situation in which jury substitution would be appropriate where the jury has announced a partial verdict on counts that are substantively related to the remaining ones.

We also find no compelling basis to treat this case differently from Banks simply because the juror there was excused because of bias, and the juror here was excused because of illness. The trial court in Banks satisfied itself that the remaining jurors were untainted by the excused juror's bias. 395 N.J. Super. at 214. The critical issue in this case is not why the initially seated juror was excused, but whether the substitute can be a full participant in the mutual exchange of ideas when the incumbent jurors have progressed so far in their thinking as to declare a deadlock.

Nor do we think it dispositive that the reconstituted jury here deliberated for slightly over three days (compared to over four days before substitution), and the reconstituted jury in Banks deliberated for little more than an hour before announcing its verdict (compared to roughly three hours before substitution). Where a deadlock has not been announced, courts have considered the length of post-substitution deliberations as a fair indication the jury did follow the court's instructions to begin deliberations anew. See United States v. Virgen-Moreno, 265 F.3d 276, 289 (5th Cir. 2001); see also Williams, supra, 377 N.J. Super. at 149 (discussing United States v. Virgen-Moreno). However, the presence of deadlock is a confounding factor. The length of post-substitution deliberations may simply reflect the length of time it took to persuade the jurors in the pre-existing holdout camp to change their views.

We also note, but do not ground reversal on, the potential tension that arises when jurors who have announced a deadlock are instructed to continue their deliberations (Czachor charge), but who, thereafter, due to juror substitution, are instructed to "deliberate anew," and effectively disregard their earlier deliberations that resulted in the deadlock. It may be that there can never be juror substitution once a genuine deadlock has been announced because jurors would then be instructed to begin their deliberations anew. However, we need not address that issue because we are satisfied "it is unrealistic to expect that the remaining members of the original panel [would have been] able to begin `anew' or that the alternate selected as a substitute under [these] circumstance[s] [would] not [have felt] `pressure to fall in line' with one of the divided camps." Banks, supra, 395 N.J. Super. at 219 (quoting Jenkins, supra, 182 N.J. at 133).

We view the post-deadlock substitution to be plain error. In Corsaro, supra, defense counsel ultimately agreed that the juror should be removed after the return of partial verdicts, an alternate seated, and the jury charged to start their deliberations anew on the remaining charges. 107 N.J. at 342-44. The Court held:

We must reach the same result here, notwithstanding that defense counsel did not raise this objection until his motion for a new trial.

In light of our resolution of the jury substitution issue, we do not reach the remaining issues presented on appeal.

Reversed and remanded.