DeLuca, 325 N.J. Super. 376, 389 (App. Div. 1999),
certif. granted 163 N.J. 79 (2000).
B. Constitutional Issue
Subsumed within the doctrine of judicial restraint is
the maxim that courts should not reach constitutional
questions unless necessary to the disposition of the
litigation. George Harms Construction Co., Inc. v. N.J.
Turnpike Auth., 137 N.J. 8, 28 (1994); Murray v.
Lawson, 136 N.J. 32, 50 (1994); O’Keefe v. Passaic Valley
Water Comm’n., 132 N.J. 234, 240 (1993); Donadio v.
Cunningham, 58 N.J. 309, 325-26 (1971); State v.
Zucconi, 50 N.J. 361, 364 (1967); J.B. v. M.B., 331 N.J.
Super. 223, 23 (App. Div. 2000); State v. Manning, 234
N.J. Super. 147, 157 (App. Div.), certif. denied, 117 N.J.
657 (1989); State v. Smith, 130 N.J. Super. 442, 446
(Law Div. 1974) (Court should not reach and determine
a constitutional issue unless absolutely imperative in
disposition of litigation). When faced with the choice
between finding a statute unconstitutional or construing
it in a way to free it from constitutional doubt or defect,
the court should choose the latter. Abbott v. Burke, 153
N.J. 480, 507 (1998), citing In re Kimber Petroleum
Corp., 110 N.J. 69, 83 (1988).
C. Plain Error and Harmless Error
The general rule on trial errors is R. 1:7-5, which
provides that an error or omission which does not
prejudice a substantial right shall be disregarded, but the
court may notice any error of such a nature as to have been
clearly capable of producing an unjust result, even
though such error was not brought to its attention by a
party. The appellate rule on notice of trial errors is R.
2:10-2, which provides that an error or omission shall be
disregarded unless it is of such a nature as to have been
clearly capable of producing an unjust result, but the
appellate court may, in the interests of justice, notice
plain error not brought to the attention of the trial or
appellate court. This rule provides a judicially developed
definition of plain error, i.e. error that is clearly capable
of producing an unjust result. Error, whether raised or
not, i.e. whether harmless error or plain error,
respectively, is governed by the same standard, but the
reviewing court has discretion not to consider an issue not
raised at trial. State v. Macon, 57 N.J. 325, 337-38
(1971). The Court in Macon analyzed the language of
the plain error standard as compared with the federal
harmless error standard and saw no practical distinction,
but noted that the federal standard is binding with
respect to timely claims of constitutional error.
Not any possibility of an unjust result will cause
reversal of a conviction. The possibility of an unjust result
must be “sufficient to raise a reasonable doubt as to
whether the error led the jury to a result ir otherwise
would not have reached.” State v. Clausell, 121 N.J. 298,
371 (1990); State v. Melvin, 65 N.J. 1, 18-19 (1974);
State v. Bankston, 63 N.J. 263, 273 (1973). Even if the
error is of constitutional dimension, it will be held
“harmless” if it is clear beyond a reasonable doubt that the
jury verdict would have been the same absent the error.
United States v. Hastings, 461 U.S. 499, 103 S.Ct. 1974,
1981 (1983); Chapman v. California, 386 U.S. 18, 23-
24 (1967); Macon, supra; State v. Scherzer, 301 N.J. Super.
363, 441 (App. Div. 1997), certif. denied, 151 N.J. 466
(1997).However, errors which impact substantially and
directly on fundamental procedural safeguards are not
considered amenable to harmless error rehabilitation.
State v. Shomo, 129 N.J. 248, 260 (1992) (sentence on
partial, or less than unanimous verdict); State v.
McCloskey, 90 N.J. 18, 30-31 (1982); State v. Czachor,
82 N.J. 392, 404 (1980); State v. Haley, 295 N.J. Super.
471, 476-77 (App. Div. 1996). Such errors have
included the Allen charge, State v. Czachor, supra; coerced
confessions, Payne v. Arkansas, 356 U.S. 560, 78 S.Ct.
844, 2 L.Ed.2d 975 (1958); total deprivation of counsel,
Gideon v. Wainwright, 372 U.S. 335 (1963); and lack of
impartial trial judge, Tuney v. Ohio, 273 U.S. 510, 47
S.Ct. 437, 71 L.Ed.2d 749 (1927). In Arizona v.
Fulminante, 499 U.S. 279, 306, 111 S.Ct. 1246, 113
L.Ed.2d 302 (1991) (applying harmless-error analysis to
improperly admitted coerced confession), however, the
United States held that “most constitutional errors can be
harmless.” If defendant had counsel and was tried by an
impartial adjudicator, there is a strong presumption that
any constitutional errors that may have occurred are
subject to harmless-error analysis, with the exception of
“structural” error, defined as structural defect in the
constitution of the trial mechanism, or a defect affecting
the framework within which the trial proceeds, rather
than simply an error in the trial process itself. See Neder
v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 1833,
144 L.Ed.2d 35 (1999) (jury instruction that omits
element of offense); Johnson v. United States, 520 U.S.
461, 468, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718, 728
(1997); State v. Purnell, 161 N.J. 44, 60 (1990); State v.
Scherzer, supra at 453. A structural error affects the
legitimacy of the entire trial, rather than an isolated error
that occurs during a certain part of the trial process and
does not contaminate the trial as a whole. Purnell, supra.
Accordingly, the Supreme Court in Johnson, has found
that structural error to exist “only in a very limited class