SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-3138- 22 LINDA D. SMITH, Plaintiff-Appellant,

v. JOHN H. DORIA, ELLEN S. MORABITO, MICHAEL C. BENEDETTI, and CARLO A. BENEDETTI, Defendants,

and

THE ESTATE OF JOHN R. COLACCI, Defendant-Respondent.

________ __ ________________ LOUISE M. FERGUSON, Plaintiff-Appellant,

v. THE ESTATE OF JOHN R. COLACCI, NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 3138

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Defendant/Third Party Plaintiff-Respondent,

v. LINDA D. SMITH, Plaintiff/Third-Party Defendant.

_______________ __ _________

Argued April 23, 2024

– Decided May 9, 2024 Before Judges Enright, Paganelli and Whipple. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No s. L- 1421

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. Evan Garber argued the cause for appellants (Garber Law, PC, attorneys; Joel Wayne Garber and Evan Samuel Garber, on the briefs). Christopher Marcucci argued the cause for respondent (Margolis Edelstein, attorneys; Christopher Marcucc i, on the brief).

PER CURIAM Plaintiffs Linda D. Smith and Louise M. Ferguson ap peal from the May 16, 2023 order denying their motion for a new trial . We affirm.3 A- 3138

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Th is case arises from an August 7, 2017 motor vehicle collision between

Smith and defendant John R. Colacci. When the acci dent occurred, John's 1 wife, Antoinette, was a passenger in his car and Ferguson was a passenger in Smith's

car. In the spring of 2019, Smith and Ferguson separately sued John for injuries they alleged ly sustained in the collision. 2 In July 2019, John filed a third-party complaint against Smith in the Ferguson matter. The following month, the trial court consolidated plaintiffs' cas es. In August 2022, after John died, the trial court granted plaintiffs leave to amend their complaints to name John's estate as a d efendant. Antoinette served

as Administratrix of the estate. During discovery, the parties deposed both drivers and their passengers regarding the accident. The deponents agreed that on the morning of August 7,

1 Because John and his wife have the same surnames, we refer to t hem by their first names. We intend no disrespect in doing so.

2 Smith also named defendants John H. Doria, Ellen S. Morabito, Michael C. Benedetti, and Carlo A. Benedetti in her complaint, as serting claims for injuries she reportedly sustained during a motor vehicle acc ident in May 2017. The parties later stipulated to a dismissal of these defendants from the action.4 A- 3138

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2017 , Smith was driving on Union Avenue in the right-hand lane and John was driving his car behind her. Further, the deponents a greed that shortly before the accident, Smith's vehicle navigation system directe d her to turn left into a parking lot, and as she began the turn, she crossed the double yellow line and collided with John's passenger side door car while he was trying to pass her

vehicle. The parties disagreed on who was responsible for th e accident. According to John's deposition testimony, before the collisio n, Smith's car was "just stopped" in the roadway with "no lights, no red lig hts, [and] no directionals" on, to indicate her car "was incapacitated." He also t estified that after he "stopped

for about three or four minutes" behind Smith's car , he "began to pass on the left, very slow and carefully, and that's when [he] got hit" by her car. Following the exchange of discovery, the matter pr oceeded to trial, with the parties disputing: (1) whether Smith stopped h er vehicle before she began the left turn into the parking lot ; (2) whether she turned on her left directional signal before she attempted to turn ; (3) the speed at which John was traveling when the collision occurred; and (4) whether other vehicles passed Smith's

vehicle before John tried to do so.5 A- 3138

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Jury selection began on March 29, 2023. The trial court summoned between fifty and fifty-five prospective jurors to the courtroom to start the selection process. Although Smith and Ferguson are Black, and Antoinette is White, neither of the parties' attorneys object ed to or comment ed on the racial composition of the venire either before the first j uror was questioned or during voir dire. Additionally, during voir dire , counsel for the parties exercised multiple peremptory challenges

. Before jury selection ended, the judge inquired if counsel wished to exercise any additional peremptory challenges. In response, plaintiff's counsel

stat ed , "Your Honor, plaintiff[s are] satisfied with this j ury." Jury selection concluded shortly thereafter. Once the remaining venire was excused from the cour troom, plaintiffs' attorney "lodged an objection with [the trial judge ] back in his chambers" as to "the composition of the jury pool." Plaintiffs' counsel stated only two unselected members of the venire were Black. According to pla intiffs, the judge stated he "fully understood [p]laintiffs' concerns, but that it was beyond his purview to order a new jury pool on those grounds. " The judge ultimately directed counsel to proceed to trial

.6 A- 3138

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Six days later, the jury returned a no cause verdic t against plaintiffs. On April 6, 2023, judgment was entered in favor of Joh n's estate. The judgment reflected the jury's finding that John "was not negligent an d bore no liability for the August 7, 2017 motor vehicle accident." Plaintiffs moved for a new trial, alleging they "we re denied their constitutional right to a jury pool that represent[ ed] a cross-section of their community ." During argument on the motion on May 12, 2023, plaintiffs' counsel also contended jury selection was based on "an unconstitutional jury pool ," which "had an effect on the case." He also argued plaintiffs were "entitled

to a new trial where [they could] assemble a [new] jur y pool" that "[wa]s . . . representative . . . of their community." Following argument, the judge who presided over the parties' trial orally denied the motion. He acknowledged "[t]here [we]re certain things that . . . happen during [a] trial where the trial judge is . . . uniquely capable of addressing " a particular problem. However, regarding plaintiffs' broader concerns about Camden County's jury selection proce ss, the judge stated, "if this is a problem, . . . it's a structural problem. It implicates the entire New Jersey judiciary. And trial judges should not be . . . ma king structural decisions." He added, "I think it[ is ] highly inappropriate for a trial court judge to a ssume that7 A- 3138

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he or she should be ordering [a] whole [-]scale revision and ordering some other new way to get jurors in[to a jury pool]." Further, the judge found no reason to question the source lists Camden County used to secure potential jurors, stating , "I do[ not] know why [the lists]

would [ not] be fairly representative. There may be other lists out there that are more representative. But I do[ not] know as a tria l judge [if] that[ is] true." Therefore, he denied plaintiffs' motion "on the basis of the way that Camden County gets jurors. And also, . . . the secondary basis that the actual panel that was brought up was not representative of the . . . race of . . . plaintiffs." The judge entered a conforming order on May 16, 2023.

II. On appeal, plaintiffs argue: (1) they "have a constitutional right to a trial by an impartial jury drawn from a representative cr oss-section of their community, even in a civil case"; (2) they "were de prived of this constitutional right to a representative jury"; (3 ) they "belong to a constitutionally-cognizable group"; (4 ) "Camden County has underrepresented black residents as jurors over a significant period of time [] and to an empirically measurable degree"; (5 ) "t he strength of the showing of racial disparity, as wel l as the use of racially non-8 A- 3138

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neutral selection procedures, proves discriminatory purpose"; and (6 ) "this discrimination resulted in [plaintiffs receiving] a n unfair trial." These arguments are unavailing. We add the followi ng comments.

"A jury verdict is entitled to considerable deference and 'should not be overthrown except upon the basis of a carefully rea soned and factually supported (and articulated) determination, after ca nvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice.'" Hayes v . Delamotte, 231 N.J. 373, 385- 86 (2018) (quoting Risko v. Thompson Muller Auto. G rp., Inc., 206 N.J. 506, 521 (2011)). Under Rule 2:10 -1, we will not consider an argument that a jury verdict is against the weight of the evidence unles s the appellant previously moved for a new trial on that ground. Ogborne v. M ercer Cemetery Corp., 197 N.J. 448, 462 (2009); State v. Reininger, 430 N.J. Super. 517, 538 (App. Div. 2013). A trial court's ruling on a motion for a new trial, "shall not be reversed unless it clearly appears that there was a miscarri age of justice under the law."

R. 2:10 -1 ; see also Twp. of Manalapan v. Gentile, 242 N.J. 295 , 304 (2020).

Where an issue raised on a new trial motion involve s a decision that is addressed to the trial court's discretion, we will not reverse unless a judge's "mistaken9 A- 3138

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exercise prejudiced the substantial rights of a party." Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R. 2:10 -2 (2024). In evaluating a trial court's decision to deny a ne w trial, "an appellate court must give due deference to the trial court's feel o f the case," but "[a] trial court's interpretation of the law and the legal consequence s that flow from established facts are not entitled to any special deference." Hayes, 231 N.J. at 386 (alteration in original) (first quoting Risko, 206 N.J. at 521 ; then quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). "Jury-selection processes are presumed valid and a defen dant challenging a jury-selection process 'must show by a prepondera nce of the believable evidence that the attacked process is fatally flawed.'" State v. Dangcil, 248 N.J. 114, 141 (2021) (quoting State v. Long, 204 N.J. Su per. 469, 485 (Law Div. 1985) ). 3 P er Rule 1:8 -3(b), "[a]ny party may challenge the array in writ ing on the ground that the jurors were not selected, drawn , or summoned according to

3 In Dangcil, the Court held defendant's filed challe nge to the array of jurors was untimely under Rule 1:8 -3(b), considering he waited until after thirteen prospective jurors were interviewed in a two-hour period to challenge the array. 248 N.J. at 134. Moreover, the Court held defendan t failed to establish "a prima facie claim of actual prejudice warranting relaxati on of Rule 1:8 -3(b)'s time bar." Ibid.10 A- 3138

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law. A challenge to the array shall be decided bef ore any individual juror is examined." (Emphasis added). Importantly, our Supreme Court has made clear that "relaxation of Rule

1:8 -3(b)'s time bar is to 'be granted only where there i s a prima facie showing of actual prejudice to [a] defendant's right to a fair and impartial jury.'" Dangcil , 248 N.J. at 133 (quoting State v. Simon, 161 N.J. 4 16, 481 (1999)). The Court explained that "time limitations are strictly enfor ced because to do otherwise would impede the orderly administration of [the] cr iminal justice system." Id. at 133-34 (alteration in original) (quoting Simon, 161 N.J. at 481). Further, the Dangcil Court instructed: To challenge whether a jury pool was drawn from a representative cross-section of the community, a defendant is required to (1) identify a constitutionally-cognizable group, that is, a group capable of being singled out for discriminatory treatment; (2) prove substantial underrepresentation over a significant period of time; and (3) show discriminatory purpose either by the strength of [defendant's] statistical showing or by showing the use of racially non -neutral selection procedures to support the inference of discrimination raised by substantial underrepresentation. [Id. at 141 (quoting State v. Dixon , 125 N.J. 223, 232 (1991)) .]11 A- 3138

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Understanding similar challenges could be raised in futu re criminal matters, the Court also held that "[i]f a defendant establishes all three prongs, the burden then shifts to the State, which must show 'that a s ignificant state interest is manifestly and primarily advanced by those aspects of the jury selection process that result in disproportionate exclusion of the di stinctive group.'" Ibid. (quoting State v. Ramseur, 106 N.J. 123, 216-17 (1987)). "[A]ctual prejudice, not possible or presumed preju dice, is required to support a due process claim." State v. Aguirre, 28 7 N.J. Super. 128, 133 (App. Div. 1996). While recogniz ing "[t]he demonstration of 'actual prejudice' is a heavy lift, " we have held that a defendant pursuing a due proces s claim in a criminal case "must show the [State's actions] caus ed actual and substantial prejudice endangering [the defendant's] right to a fair trial[,] and must present concrete evidence showing material harm." State v. S.J.C., 471 N.J. Super. 608, 624 (App. Div. 2022), leave to appeal denied, 251 N .J. 372 (2022) (quoting State v. Alexander, 310 N.J. Super. 348, 355 (App. Div. 1 998)). Guided by these standards, and the plain language o f Rule 1:8 -3(b), we are convinced plaintiffs' challenge to the composit ion of the venire was untimely and improperly made. Indeed, plaintiffs ' counsel orally objected to the racial composition of the venire in the trial judge's cham bers, rather than in writing12 A- 3138

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and on the record. He also failed to lodge his objection until after : extensive voir dire concluded; he expressed satisfaction with the selected jurors; a nd the remaining venire was dismissed from the courtroom. Under these circumstances, we are persuaded the judge correctly denied plaintiffs' motion

for a new trial. We hasten to add that because plaintiffs' challenge to the venire was untimely and mistakenly exercised, the record is de void of evidence proving their attorney's claim th at the jury pool included only two Black persons. Th us , it is not surprising defendant now claims that after plai ntiffs' counsel interposed his objection, "neither the [trial c]ourt[,] nor op posing counsel . . . could make any observations to confirm or deny counsel's repre sentation" regarding the skin color of potential jurors. The limited record before us also fails to show act ual prejudice resulted from the composition of the veni re. 4 Moreover, given the timing and nature of plaintiffs ' challenge, there is no evidence that Black persons were underrepresented i n the entire pool of venirepersons available in the Camden County courth ouse on the day of jury

4 Plaintiffs submitted no transcript of the trial, ot her than the transcript for the jury selection hearing on March 29, 2023. The only other transcript they provided was from argument on their motion for a ne w trial on May 12, 2023.13 A- 3138

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selection. We also do not ignore that due to plain tiffs' belated challenge, the trial judge was deprived of the chance to timely rectify, if appropriate, any legitimate concerns involving the venirepersons present in the courthouse on the day of trial. In sum, on this limited record, we discern no basis to distur b the denial of plaintiffs' request for a new trial and no reason t o question the jury's verdict. Accordingly, we affirm the May 16, 2023 order, albe it for reasons different than those expressed by the trial judge. See State v. H eisler, 422 N.J. Super. 399, 416 (App. Div. 2011) (noting a reviewing court is f ree to affirm "on grounds different from those relied upon by the trial court "). Considering our determination, we do not reach plaintiffs' remaining arguments

. Affirm ed

.