NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0045-24
STATE OF NEW JERSEY,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
AS REDACTED
v. August 3, 2026
APPELLATE DIVISION
THOMAS J. FOX,
a/k/a THOMAS J. FOX III
and THOMAS J. FOX JR.,
Defendant-Appellant.
Argued May 20, 2026 – Decided August 3, 2026
Before Judges Gummer, Paganelli, and Jacobs.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No. 23-07-1607.
Peter T. Blum, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer N. Sellitti,
Public Defender, attorney; Peter T. Blum, of counsel
and on the briefs).
Linda A. Shashoua, Assistant Prosecutor, argued the
cause for respondent (William Reynolds, Atlantic
County Prosecutor, attorney; Linda A. Shashoua, of
counsel and on the brief; Courtney Cittadini, Section
Chief, on the brief).
The opinion of the court was delivered by
JACOBS, J.A.D.
This appeal presents a question of first impression: whether a trial judge
may require a jury to reach unanimity before requesting playback of trial
testimony. We conclude the trial judge misapplied her discretion by requiring
juror unanimity before further considering an initial request for testimony
playback. We therefore vacate defendant's convictions for fourth-degree
operating a motor vehicle during a period of license suspension, vacate the
sentence imposed, and remand for a new trial.
I.
On February 14, 2018, Officer David LaSassa of the Galloway Township
Police Department conducted a traffic stop of defendant's pickup truck
carrying furniture in its bed. A rope used to secure the furniture was trailing
along the roadway approximately twenty yards behind the vehicle. Officer
LaSassa asked for defendant's driver's license, but defendant informed the
officer he did not have one. Before he could complete the stop, the officer was
dispatched to another call. Later, Officer LaSassa confirmed with dispatch
defendant's driver's license had been suspended. He issued three citations,
which were mailed to defendant at the last known address associated with his
license, charging: (1) improper loading of a vehicle so as to spill, N.J.S.A.
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39:4-77; (2) driving without a license, N.J.S.A. 39:3-10; and (3) operating a
motor vehicle while a license is suspended or revoked, N.J.S.A. 39:3-40.
On July 18, 2023, an Atlantic County grand jury indicted defendant for
fourth-degree operating a motor vehicle during a period of license suspension,
N.J.S.A. 2C:40-26(a), and fourth-degree operating a motor vehicle during a
period of license suspension based on a second violation, N.J.S.A. 2C:40 -26(b). The fourth-degree charges were tried before a jury, and the traffic
violations were tried before the trial judge.
At trial in April 2024, the State presented two witnesses, Officer
LaSassa and Brian Beke, a Driver Improvement Analyst at the New Jersey
Motor Vehicle Commission (MVC). Defendant did not testify or call any
witnesses.
Officer LaSassa testified regarding the motor-vehicle stop. Beke
testified about defendant's driver's abstract, which showed multiple prior
suspensions and convictions for driving under the influence and driving while
suspended. A redacted version of the eight-page abstract was admitted into
evidence without objection. Beke explained that on May 14, 2009, defendant's
driving privileges were suspended for two years because defendant had
operated a vehicle while under the influence of liquor or drugs on March 29,
2009. On September 3, 2010, defendant received two additional violations, for
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operating a vehicle while under the influence of alcohol or drugs and for
operating a vehicle with a suspended license. On February 2, 2011, the
municipal court suspended defendant's license for a ten-year period, beginning
on January 5, 2011, for the operating-while-under-the-influence violation.
Beke explained the MVC receives confirmation of suspensions from the court
and records them. Then "the system generates the notice and mails it out" to
the driver's last known address.
After Beke testified, the judge instructed the jury not to speculate about
redactions to defendant's driver's abstract and to consider only the evidence
presented. In her final charge to the jury, the judge also gave a limiting
instruction that the evidence regarding permissible use of prior motor-vehicle
violations was admitted "for the specific purpose of establishing an element of
the present offense."
As reflected in the trial transcript, the court recessed at 3:10 p.m. for
jury deliberations. The court reconvened at 3:58 p.m. in response to a note
from the jury requesting a transcript of the trial. Without first reading the note
on the record or conferring with counsel as to an appropriate response, the
judge had the jury returned to the courtroom. The judge responded to the
jury's request:
[THE COURT Reading the note:] "Can we have
[c]ourt transcripts?" There isn't a [c]ourt transcript, so
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what you are allowed to do, and what we may do for
you, is we can replay portions of the testimony for
you, okay? In order for me to do that, we don't replay
the whole trial. So what I need is that unanimously
that you all go back into the jury room, and you're
going to send me out another note of what portions of
the testimony you would like to have replayed, okay?
So it would be best if you told me which witness and
what portions.
And I need it to be something that's unanimous,
that you all agree that that's the portions you need.
And we can't replay . . . we don't . . . we would prefer
not to replay a two-hour trial, or two-and-a-half[-]hour
trial. So you know, when I say portions, you know,
you can . . . limit it by subject matter or time or
whatever, whatever you have that can tell me so I can
identify in the [c]ourt's record what it is that you're
looking for, okay?
So you're going to go back into the jury room.
Send me out another note through the jury officer, and
then we will determine where we go from here, okay?
Counsel, anything for the record?
[PROSECUTOR]: Nothing from the [S]tate.
[DEFENSE COUNSEL]: No, Your Honor.
THE COURT: Thank you.
(Jury exits the courtroom)
[(Emphasis added).]
The jury resumed deliberations at 4:02 p.m. without issuing a note
responsive to the judge's instruction. Instead, at 4:47 p.m., the jury
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communicated it had reached a verdict, convicting defendant of both fourthdegree charges. The judge found defendant guilty of the traffic violations.
Defendant moved for a judgment of acquittal, arguing insufficient evidence
was adduced to prove he had known his license was suspended. The judge
denied the motion, finding the State's evidence sufficient. At sentencing, the
judge imposed an aggregate fifteen-month term of imprisonment with a 180-day parole disqualifier, and additional fines and penalties on the traffic
violations.
Defendant appeals, raising four arguments:
POINT I
THE DRIVING-WHILE-SUSPENDED CONVICTIONS SHOULD BE DISMISSED BECAUSE
DOCUMENTS SHOWING ONLY THAT A PRIOR
COURT HAD SUSPENDED DEFENDANT'S
LICENSE AND THAT A CONFIRMATION HAD
BEEN MAILED TO A REDACTED ADDRESS DID
NOT SUFFICIENTLY PROVE THAT DEFENDANT
KNEW HIS LICENSE WAS SUSPENDED. U.S.
CONST. AMEND. XIV; N.J. CONST. ART. 1, ¶ 1.
POINT II
DEFENDANT SHOULD HAVE A NEW TRIAL ON
THE FOURTH-DEGREE CHARGES BECAUSE A
LARGE QUANTITY OF IRRELEVANT PRIOR
BAD ACTS WERE ADMITTED THROUGH HIS
DRIVER'S ABSTRACT. U.S. CONST. AMENDS.
XIV; N.J. CONST. ART. 1, ¶ 1. ([N]ot raised below).
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POINT III
DEFENDANT SHOULD HAVE A NEW TRIAL ON
THE FOURTH-DEGREE CHARGES BECAUSE
THE COURT IMPROPERLY INSTRUCTED THE
DELIBERATING JURORS THAT THEY HAD TO
BE UNANIMOUS IN REQUESTING A PLAY
BACK. U.S. CONST. AMENDS. XIV; N.J. CONST.
ART. 1, ¶ 1. ([N]ot raised below).
POINT IV
DEFENDANT'S ILLEGAL SENTENCE SHOULD
BE CORRECTED BY MERGING THE LESSER
TRAFFIC VIOLATIONS FOR DRIVING WHILE
SUSPENDED AND DRIVING WITHOUT A
LICENSE INTO THE GREATER FOURTHDEGREE CONVICTIONS FOR DRIVING WHILE
SUSPENDED. U.S. CONST. AMENDS. V, XIV; N.J.
CONST. ART. 1, ¶¶ 1, 11. ([N]ot raised below).
II.
Because we are persuaded defendant is entitled to a new trial based on
the judge's instruction that unanimity was required for a playback of
testimony, we address that argument first.
In the absence of an objection to the judge's instruction, our review is
limited to plain error. See R. 2:10-2 ("[T]he appellate court may, in the
interests of justice, notice plain error not brought to the attention of the trial or
appellate court."). "If the defendant does not object to the charge at the time it
is given, there is a presumption that the charge was not error and was unlikely
to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182
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(2012) (citing State v. Macon, 57 N.J. 325, 333-34 (1971)). "[P]lain error
requires demonstration of legal impropriety in the charge prejudicially
affecting the substantial rights of the defendant and sufficiently grievous to
justify notice by the reviewing court and to convince the court that of itself the
error possessed a clear capacity to bring about an unjust result." Id. at 182-83
(quoting State v. Chapland, 187 N.J. 275, 289 (2006)) (internal quotation
marks omitted). "Furthermore, an 'alleged error is viewed in the totality of the
entire charge, not in isolation,' and 'any finding of plain error depends on an
evaluation of the overall strength of the State's case.'" State v. Cotto, 471 N.J.
Super. 489, 545 (App. Div. 2022) (quoting State v. Nero, 195 N.J. 397, 407
(2008)).
In State v. Miller, Chief Justice Rabner, writing for a unanimous Court,
addressed how trial judges should respond to a jury's request for testimony
playback:
Juries routinely ask to review trial testimony when
they deliberate. Absent "some unusual circumstance,"
those requests should be granted. State v. Wolf, 44
N.J. 176, 185 (1965). The requests are a clear sign
that the evidence sought is important to the
deliberative process. They also reflect the reality that
jurors cannot be expected to have perfect recall of
every bit of evidence introduced during a trial. As a
result, the "true administration of justice" requires that
judges typically accede to jury requests to review
testimony. Ibid.; see also State v. Wilkerson, 60 N.J.
452, 460 (1972). Judges should not decline a request
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simply because it "would take time." Wolf, 44 N.J. at
186.
[205 N.J. 109, 119-20 (2011) (citations reformatted).]
In Wolf, the "unusual circumstance[s]" for denying a jury's request for
testimony readback were discussed in the context of a trial judge's instruction
for a jury "to rely upon their recollection as to what the questioning of [a
witness] had disclosed of the subject matter" in question. 1 44 N.J. at 184. In
reversing the defendant's conviction for murder and "under the somewhat
bizarre [procedural] circumstances of the case," the Wolf Court held the trial
court had unfairly exercised its discretion in "simply advising [jurors] to rely
upon their recollection of the cross-examination of" a witness rather than grant
the defense's request to reopen the case and allow additional testimony from a
co-participant regarding the contents of letters that were the subject of the
jury's note issued during deliberation. Id. at 184-85. The Court opined:
1
The term "readback" was not used in Wolf. Instead, the Court referred to "reading of . . . testimony." Wolf, 44 N.J. at 185. The term "readback" was used in Miller to describe the practice of court reporters reading back testimony. State v. Miller, 205 N.J. 109, 122 (2011). With the universal use of recording technology, we use the term "playback." This transition was anticipated by the 1991 Supreme Court Committee on Court Reporting (Stenographic & Electronic), which recommended in its Final Report that courtrooms be equipped with videotape systems to create the record and that videotape recording be extended to additional courts as official court reporters voluntarily left state service. Miller, 205 N.J. at 120.
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It should be remembered that the reading of all
or part of the testimony of one or more of the
witnesses at a trial, criminal or civil, at the specific
request of the jury during their deliberations is
discretionary with the trial court. . . . When a jury
retires to consider their verdict, their discussion may
produce disagreement or doubt or failure of definite
recollection as to what a particular witness said in the
course of his testimony. If they request enlightenment
on the subject through a reading of his testimony, in
the absence of some unusual circumstance, the request
should be granted. The true administration of justice
calls for such action. Where there is a doubt in the
minds of jurors as to what a witness said, it cannot be
prejudicial to anyone to have that doubt removed by a
rehearing of his testimony. There is no need to be
chary for fear of giving undue prominence to the
testimony of the witness. If under our system of trials
a jury is to be considered intelligent enough to be
entrusted with powers of decision, it must be assumed
they have sense enough to ask to have their memories
stimulated or refreshed only as to those portions of the
testimony about which they are in doubt or
disagreement. It must be assumed also that if they had
any similar doubts or disagreements about statements
of other witnesses they would seek the same remedy.
. . . The matter must be left in the sensitive discretion
of the trial judge. . . . But generally where the
testimony is reasonably available, a judge should not
refuse to grant a jury request to have it read merely
because the reading would take time. In these days
when the purpose of our procedure is full, fair and free
exposure of all relevant evidence in a case both before
and during the trial, there is no just reason for
insisting that laymen jurors must have an unfailing
and unanimous memory of all the testimony they hear
in the courtroom.
[Id. at 185-86 (citations omitted).]
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As the parties note in their merits briefs, there is no New Jersey
precedent directly addressing whether a jury's request for playback be
unanimous, consensus-based, or the wish of a single juror. Thus, although we
read the Court's holdings in Miller and Wolf to recognize a trial judge's
discretion to inquire whether the scope of witness playback pertains to "one or
more of the witnesses," it must concomitantly "be assumed [jurors] have sense
enough to ask to have their memories stimulated or refreshed only as to those
portions of the testimony about which they are in doubt or disagreement ."
Wolf, 44 N.J. at 185. Neither Miller nor Wolf suggests a trial judge has the
discretion to impose unanimity as a condition to narrow the scope of playback.
To endorse the exercise of such discretion would contravene the Court's
recognition that "the purpose of our procedure is full, fair and free exposure of
all relevant evidence in a case . . . [in which] there is no just reason for
insisting that laymen jurors must have an unfailing and unanimous memory of
all the testimony they hear in the courtroom." Id. at 186.
Based on the record, it is unclear what led the judge to impose unanimity
as a condition for witness playback or why the judge did not simply play back
the testimony. The trial was brief. From the record, which includes time
stamps, Officer LaSassa's and Beke's entire testimony lasted a combined total
of approximately seventy-nine minutes. Considering this limited time frame, it
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was not unreasonable for the jury to seek playback of trial testimony in its
entirety.
As noted, the jury submitted its request shortly before 3:58 p.m. The
judge did not allocate time to first review the question with counsel. The
record does not reveal whether the jury returned a verdict without responding
to the judge's instruction because it believed unanimity was required or
because it no longer needed the requested playback. However, the risk that a
single juror was deprived of the opportunity to hear the testimony again
undermines our confidence in the deliberative process and the verdict.
Moreover, the trial judge's unanimity rule was unsupported by law. Thus, the
error was not harmless as it had the clear capacity to produce an unjust result.
See R. 2:10-2.
We reach this conclusion recognizing that the confidentiality of jury
deliberations prevents us from knowing whether the verdict would have
differed had the jury's request been granted. What we do know is that the jury
returned its verdict forty-five minutes after being told its request for playback
required unanimity, coincident with the end of the court day. The time and
nature of these proceedings, permit the inference that concern for exigency
may have played a role in the jury's verdict.
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Although this was a brief trial, brevity is not a measure of a case's
importance. The State's proofs, however facially sufficient, were properly
subject to the jury's scrutiny, as in every case regardless of duration or gravity.
These considerations reinforce our conclusion that the judge's instruction
improperly impeded the jury's fundamental function, prejudicially affecting
defendant's substantial rights and possessing the clear capacity to produce an
unjust result. See R. 2:10-2.
We take this opportunity to outline the procedure trial judges should
follow in responding to a jury question. On receiving a question, the judge
should first convene counsel to the courtroom, read the question into the
record, and state the proposed response outside the jury's presence. Before the
jury is brought into the courtroom, counsel should be afforded an opportunity
to present their respective positions on the record as to how the judge should
respond to the jury's question. After considering counsel's positions, the judge
should state the intended response. Consistent with Rule 1:7-2, counsel should
then be afforded the opportunity to state whether they agree or object to the
proposed response and any grounds for objection. Rule 1:7-2 provides:
For the purpose of reserving questions for review or
appeal relating to rulings or orders of the court or
instructions to the jury, a party, at the time the ruling
or order is made or sought, shall make known to the
court specifically the action which the party desires
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the court to take or the party's objection to the action
taken and the grounds therefor. . . .
This procedure ensures counsel has a meaningful opportunity to freely
express their position without concern that disagreement with the court's
proposed response must be voiced either in the presence of the jury or at a
sidebar whose purpose is made evident when, as occurred here, in the jury's
presence, the judge asks, "Counsel, anything for the record?"
We reaffirm the established principle that playback requests ordinarily
should be granted. Although we do not decide here between whether a
playback request must reflect the consensus of the jury or may be made at the
request of a single juror, we see no reason to disagree with defendant's position
that "[i]f even one deliberating juror want[s] clarification of the testimony, that
juror should . . . [be] allowed to make a request of the judge," particularly
given the unanimity required of jury guilty verdicts.
III.
[At the direction of the court pursuant to Rule
1:36-3, the published version of this opinion omits
Part III, which addresses defendant's Points I, II,
and IV, arguing for judgment of acquittal,
exclusion of evidence of prior bad acts, and
questions of merger.]
Vacated and remanded for proceedings consistent with this opinion. We
do not retain jurisdiction.
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