State of New Jersey v. Calvin Presley

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4816-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

APPROVED FOR PUBLICATION

CALVIN PRESLEY, SHILYRE

July 17, 2014

COLLINS, and MADELINE SANCHEZ,

APPELLATE DIVISION

Defendants-Appellants,

and

ELISE MINTZER and GARRET

LARDIERE 2ND,

Defendants.

_______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CALVIN PRESLEY, DARLENE OTT,

ANDREA DEKKER and CHRISTOPHER

CLARK,

Defendants-Appellants.

________________________________________________________________

Argued November 6, 2013 – Decided July 17, 2014

Before Judges Fisher, Espinosa and O'Connor.

On appeal from an interlocutory order of

Superior Court of New Jersey, Law Division,

Ocean County, Indictment Nos. 12-12-2405 and

12-12-2484.

John P. Reilly argued the cause for

appellant Calvin Presley.

Joseph E. Krakora, Public Defender, attorney

for appellants Shilyre Collins and Darlene

Ott, joins in the brief of appellant Calvin

Presley.

Michael H. Schreiber, attorney for appellants

Andrea Dekker and Madeline Sanchez, joins in

the brief of appellant Calvin Presley.

Glenn D. Kassman, attorney for appellant

Christopher Clark, joins in the brief of

appellant Calvin Presley.

Roberta DiBiase, Senior Assistant

Prosecutor, argued the cause for respondent

(Joseph D. Coronato, Ocean County

Prosecutor, attorney; Samuel J. Marzarella,

Supervising Assistant Prosecutor, of

counsel; Ms. DiBiase and Nicholas Norcia,

Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

ESPINOSA, J.A.D.

In State v. McCann, 391 N.J. Super. 542 (App. Div. 2007),

we announced a prospective "bright-line rule" that called for

invalidating search warrants issued by a judge who was bound to

recuse himself or herself based on a prior relationship.

Defendants here ask us to apply that rule to invalidate search

warrants and orders, suppress all evidence obtained, and dismiss

2 A-4816-12T2

two resulting indictments because the judge who issued the

warrants prosecuted one of them as an assistant prosecutor. The

judge recused himself upon being alerted to the disqualifying

facts, and so, the question here is not one of recusal but of

remedy. Specifically, we consider whether the application of a

bright-line rule is appropriate on the facts of this case.

Those circumstances include the following: the judge prosecuted

only one of the defendants; no defendant alleges the judge was

biased or aware of the disqualifying facts when he issued the

warrants or that there was insufficient probable cause for their

issuance; and finally, the defendant prosecuted by the judge

withheld the disqualifying facts while appearing before the

judge on unrelated matters for "strategic" reasons for over a

year. Because we conclude that McCann is distinguishable and

that the remedy sought by defendants will not serve the

interests of the Code of Judicial Conduct, we affirm the order

denying defendants' motion for such relief.

I.

Like so many Superior Court Judges, the judge here served

as an assistant prosecutor before he was appointed to the bench

3 A-4816-12T2

in 2007.1 During his decade-long service as a prosecutor, he

represented the State in four matters in which defendant Shilyre

Collins entered guilty pleas pursuant to plea agreements and was

sentenced. There is no contention that he participated in the

prosecution of defendants Calvin Presley, Madeline Sanchez,

Elise Mintzer, Garret Lardiere 2nd, Darlene Ott, Andrea Dekker,

or Christopher Clark (the other defendants) as an assistant

prosecutor.

In the months of March and April 2012, approximately seven

years after he was last involved in a prosecution of Collins,

the judge reviewed a series of applications and issued warrants

that authorized the installation and use of tracking devices,

the interception of wire and electronic communications, searches

of various locations, and the arrests of Collins and Presley

(collectively, the warrants). This was not the first criminal

prosecution involving Collins in which the judge served in a

judicial capacity.

More than one year earlier, in January 2011, the judge

arraigned Collins and Presley on Indictment No. 10-12-2195,

which charged them with third-degree drug possession offenses.

1

At oral argument on the motion, Presley's counsel asserted

that eight of the judges sitting in Ocean County had previously

served as assistant prosecutors.

4 A-4816-12T2

A motion to suppress evidence was filed and pending until

resolved on November 15, 2011. The prosecutor dismissed the

indictment against Collins after her co-defendant exonerated

her. At no time during the year that this indictment was

pending before the judge did Collins ever remind the judge of

his prior prosecution of her or request his disqualification.

In November 2011, the judge arraigned Presley and Collins

on another Indictment, No. 11-10-1923, which charged them with

drug offenses and other offenses.2 A status conference was

scheduled, with motions,3 for April 18, 2012.

The warrants that are the subject of this matter were

issued by the judge during that period between the arraignment

on the second Indictment, No. 11-10-1923, and the scheduled

April 2012 court date. Approximately six months later, within

the context of that pending matter, the prosecutor sent a letter

to the judge and defense counsel, dated October 3, 2012, stating

2

Presley was charged with three counts of third-degree drug

offenses, third-degree hindering apprehension, and fourth-degree

tampering with physical evidence. Collins was charged with two

counts of third-degree drug offenses and third-degree resisting

arrest. A third defendant was also charged with attempting to

possess a controlled dangerous substance (CDS).

3

The record does not disclose what motions were filed regarding

this indictment. However, according to the motion judge's

opinion, a search warrant was issued by the same judge who

issued the warrants challenged here for a vehicle occupied by

Presley and Collins.

5 A-4816-12T2

the judge had prosecuted Collins in an earlier matter,

Indictment No. 04-04-668.4 At the next conference scheduled

regarding Indictment No. 11-10-1923, the judge advised counsel

he would not preside over any matters involving Collins, and the

cases were transferred to another judge (the motion judge). It

is undisputed that no defendant raised the issue of

disqualification prior to the prosecutor's disclosure.

In October 2012, Presley moved for an order declaring the

warrants issued by the judge invalid, suppressing all evidence

against him obtained through the execution of those warrants,

and dismissing the charges against him. Collins later joined

Presley's motion.

4

The State concedes that the judge represented the State in a

total of four matters. In addition to the one revealed by

Promis/Gavel in October 2012, those matters included the

following:

 On December 11, 2001, he executed a plea agreement in which

Collins entered a guilty plea pursuant to a plea agreement

to one count of Indictment No. 01-07-987 and to Indictment

No. 01-11-1546, both of which charged her with third-degree

possession of cocaine.

 On November 10, 2003, he executed a plea agreement in which

Collins pled guilty to one count of Indictment 03-04-466,

which was amended to third-degree conspiracy to possess

cds.

 On July 15, 2005, he represented the State when Collins

entered a guilty plea to a violation of probation (VOP)

related to the sentences imposed on Indictment Nos. 01-07-

987, 01-11-1546, and 03-04-466, and was sentenced on the

VOP and on her guilty plea to one count of another

Indictment, No. 04-04-668.

6 A-4816-12T2

In December 2012, while the motion was pending, the grand

jury returned Indictment No. 12-12-2405, charging Presley,

Collins, Sanchez, Mintzner, and Lardiere with drug conspiracy

and possession offenses. A second indictment, in which Collins

was not a defendant, charged Presley, Ott, Dekker, and Clark

with conspiracy to commit robbery and robbery (Indictment No.

12-12-2484).

At oral argument on the motion, no defendant contended that

the judge was biased or recalled his prosecution of Collins at

the time he issued the orders. To the contrary, Presley's

counsel stated he had "no reason to believe that [the judge]

recalled or [was] biased," and further declared that whether the

judge had such recollection was "entirely completely

irrelevant." Rather, he stated the issue called for an "ex post

facto analysis" in which the judge's failure to recuse himself

sua sponte should be evaluated "in hindsight," informed by the

facts that came to light afterward. Because the judge had

"personally prosecute[d]" Collins, Presley argued that the

McCann bright-line rule applied, requiring the invalidation of

all the orders and warrants and the suppression of all evidence

obtained, against not only Collins but against all the

defendants in both indictments.

7 A-4816-12T2

Collins's attorney argued that the warrants were legally

defective and invalid because they were not issued by a "neutral

and detached magistrate," see Johnson v. United States, 333 U.S.

10, 13-14, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948), and

therefore, it was unnecessary to show actual bias by the judge.

He rejected the notion that Collins had any responsibility to

raise the issue of a conflict while her prior matters were

proceeding before the judge. He maintained it was a defendant's

right to make "a strategic assessment" as to whether and when a

motion should be brought:

Miss Collins [and I] had our own strategic[]

reasons of why, although we may have known

about this conflict before this case came

along, had our strategic[] reasoning, I'm

sure, that we're not going to reveal to

anyone at this point why we didn't perhaps

decide to raise this issue at that point.

The motion judge denied defendants' motions in a written

decision. We granted defendants leave to appeal.5

Defendants raise the following issues for our

consideration:

POINT I

THE [] ORDERS/WARRANTS ISSUED IN FURTHERANCE

OF THE STATE'S INVESTIGATION OF THE CRIMINAL

5

Presley filed a motion for leave to appeal. Collins, Sanchez,

Clark, and Dekker later moved to join Presley's motion, and this

court granted the motion. Collins, Sanchez, Clark, and Dekker

have chosen to rely on Presley's brief and argument.

8 A-4816-12T2

MATTER INVOLVING COLLINS MUST BE DECLARED

INVALID, THE EVIDENCE OBTAINED THEREBY

SUPPRESSED, AND THE SUBJECT INDICTMENTS

DISMISSED FOR HAVING VIOLATED THE "BRIGHT

LINE RULE" ESTABLISHED BY THIS COURT IN THE

CASE OF STATE V. MCCANN.

POINT II

THE COURT BELOW ERRED BY APPLICATION OF AN

UNFOUNDED SUBJECTIVE ANALYSIS AND FAILING TO

APPLY THE MCCANN OBJECTIVE "BRIGHT LINE

RULE" FOR DISQUALIFICATION AND, THEREFORE,

MUST BE REVERSED.

Notably, no defendant challenges the sufficiency of the

evidence presented in the affidavits to establish probable cause

for the issuance of the warrants. And no one argues that the

judge knew of the disqualifying prior prosecutions at the time

he reviewed the affidavits or that he was actually biased

against any defendant. Defendants argue that such questions are

irrelevant and that, based upon a "hindsight" analysis, the

grounds for the judge's recusal alone dictate the nullification

of all his actions, suppression of all evidence, and dismissal

of the charges. We disagree.

II.

We begin by reviewing the principles that required the

judge's recusal here.

The "overarching objective of the Code of Judicial Conduct

is to maintain public confidence in the integrity of the

judiciary." In re Advisory Letter No. 7-11 of the Supreme Court

9 A-4816-12T2

Advisory Comm., 213 N.J. 63, 71 (2013). Such confidence

"depends on a belief in the impersonality of judicial

decisionmaking." United States v. Nobel, 696 F.2d 231, 235 (3d

Cir. 1982), cert. denied, 462 U.S. 1118, 103 S. Ct. 3086, 77 L.

Ed. 2d 1348 (1983). Because "'justice must satisfy the

appearance of justice,'" State v. Deutsch, 34 N.J. 190, 206

(1961) (quoting Offutt v. United States, 348 U.S. 11, 14, 75 S.

Ct. 11, 13, 99 L. Ed. 11, 16 (1954)), we are as concerned with

how facts may reasonably be perceived by the public as we are

with actual cases of partiality. See DeNike v. Cupo, 196 N.J.

502, 514 (2008); see also State v. McCabe, 201 N.J. 34, 42-43

(2010); State v. Kettles, 345 N.J. Super. 466, 469-71 (App. Div.

2001), certif. denied, 171 N.J. 443 (2002). Thus, without any

proof of actual prejudice, "'the mere appearance of bias may

require disqualification.'" Panitch v. Panitch, 339 N.J. Super.

63, 67 (App. Div. 2001) (quoting State v. Marshall, 148 N.J. 89,

279, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d

88 (1997)). "However, before the court may be disqualified on

the ground of an appearance of bias, the belief that the

proceedings were unfair must be objectively reasonable."

Marshall, supra, 148 N.J. at 279. The Supreme Court has

distilled these principles to this question: "Would a

reasonable, fully informed person have doubts about the judge's

10 A-4816-12T2

impartiality?" DeNike, supra, 196 N.J. at 517; see also In re

Advisory Letter No. 7-11, supra, 213 N.J. at 74-75.

Pursuant to Rule 1:12-1(g), a judge must be disqualified

when there is any . . . reason which might

preclude a fair and unbiased hearing and

judgment, or which might reasonably lead

counsel or the parties to believe so.

An administrative directive promulgated by the

Administrative Director of the Courts, dated September 19, 1983,

more particularly addresses the circumstances here:

A judge should disqualify himself or herself

from hearing a criminal matter involving a

defendant who the judge, in his or her

previous capacity, had personally prosecuted

or defended, or had represented in a civil

matter in the past.

Because he had previously prosecuted Collins, the judge

here had a non-waivable conflict that required his

disqualification from matters involving her. Rivers v. Cox-

Rivers, 346 N.J. Super. 418, 421 (App. Div. 2002); Kettles,

supra, 345 N.J. Super. at 469-71; State v. Tucker, 264 N.J.

Super. 549, 555 (App. Div. 1993), certif. denied, 135 N.J. 468

(1994); Code of Judicial Conduct, Canon 3(C), (D). When

presented with the disqualifying fact, he recused himself, and

the matters proceeded before another judge. From that point

forward, all issues regarding the admissibility or suppression

of evidence, motion practice, the conduct of any plea

11 A-4816-12T2

negotiations or trial, and the ultimate disposition of the

charges against Collins and the other defendants rested in the

hands of a judge whose impartiality is unchallenged.

The question here is, given these facts, what remedy is

"required to restore public confidence in the integrity and

impartiality of the proceedings, to resolve the dispute in

particular, and to promote generally the administration of

justice." DeNike, supra, 196 N.J. at 519 (emphasis added).

III.

As defendants' argument rests largely upon our decision in

McCann, we briefly review that case. After the defendant was

indicted on various drug charges, he moved to suppress evidence

seized pursuant to a search warrant issued by a municipal court

judge he considered his "family attorney" on the ground that the

judge was not a "neutral and detached magistrate" as required to

satisfy the warrant requirement of the federal and State

constitutions.6 McCann, supra, 391 N.J. Super. at 544-45. The

defendant presented the following facts to support his argument:

6

Under the Fourth Amendment to the United States Constitution,

"no Warrants shall issue, but upon probable cause, supported by

Oath or affirmation." See also N.J. Const. art. I, ¶ 7 ("[N]o

warrant shall issue except upon probable cause, supported by

oath or affirmation . . . ."); Johnson, supra, 333 U.S. at 13-

14, 68 S. Ct. at 369, 92 L. Ed. at 440; State v. Brown, 216 N.J.

508, 539 (2014).

12 A-4816-12T2

[H]e had known the Municipal Court judge for

twenty or thirty years, had consulted with

him on various legal matters, and had been

represented by him in one litigated case

about ten years earlier. Defendant

considered the judge his "family

attorney[.]"

. . . .

He had been represented by him. His

two sisters had been represented by him.

His mother had been represented by him. He

had been to his house on at least 12

occasions. He has sought his counsel on at

least ten occasions. He had worked with him

as part of his function with Winslow

Township as an inspector. And he was so

comfortable with him that he was able to

approach him three weeks before the issuance

of this search warrant and request an OR

bail for a friend.

[Ibid.]

The motion judge granted the defendant's suppression

motion. We granted the State leave to appeal.

In our decision, we reviewed the "neutral and detached

magistrate" requirement, cases from out of state that considered

whether the judge's prior acquaintance with the defendant was a

basis for invalidating a search warrant (State v. Mandravelis,

325 A.2d 794 (N.H. 1974), and United States v. Heffington, 952

F.2d 275 (9th Cir. 1991)), the governing Canons of the Code of

Judicial Conduct, New Jersey cases that interpreted when

disqualification was required, and federal recusal practice. We

agreed with the motion judge that the municipal court judge

13 A-4816-12T2

should not have reviewed the warrant application. However, we

concluded that suppression was not appropriate, stating,

Here, defendant makes no assertion of bias

on the part of the judge who signed the

warrant and the facts concerning the prior

relationship suggest none. More

importantly, as we have noted, no case until

today has expressly condemned the practice

in question, which likely occurs only

infrequently. As a result, our ruling shall

be purely prospective.

In the future, if a defendant makes a

particularized and credible assertion of

facts that objectively suggest an appearance

of partiality on the part of the judge

issuing a search warrant, based on a prior

relationship or otherwise, a "bright-line"

rule invalidating the search warrant will be

applicable. The test is similar to that

used in judging whether recusal is warranted

under the principles discussed earlier. We

ask whether, if defendant were a party to

the warrant application, would he be

entitled to recusal of the judge. If so,

then the warrant proceeding "is a nullity."

[McCann, supra, 391 N.J. Super. at 554-55

(citations omitted).]

IV.

Based on no more than the conflict involving Collins, the

defendants who were not previously prosecuted by the judge argue

that McCann requires the invalidation of warrants, suppression

of evidence, and dismissal of indictments against all of them

because the McCann "bright-line rule" calls for "invalidating

the search warrant." Id. at 555. Defendants argue that, as a

14 A-4816-12T2

result, the warrants were "invalid from their inception" and

therefore invalid as to all defendants. We do not accept the

result urged as required by McCann or any other authority.

Importantly, McCann and the cases relied upon in our

formulation of the bright-line rule each involved an individual

defendant who had a prior relationship with the judge that made

recusal necessary. McCann, supra, 391 N.J. Super. at 550-55.7

We did not consider whether the circumstances giving rise to an

objectively reasonable belief that the judge could not qualify

as a "neutral and detached magistrate" based on his relationship

with one defendant necessarily invalidated a warrant admittedly

based on probable cause as to other defendants with whom he had

no disqualifying history. We explained that the application of

the disqualification rule depended upon the question "whether,

if defendant were a party to the warrant application, would he

[or she] be entitled to recusal of the judge. If so, then the

warrant proceeding 'is a nullity.'" McCann, supra, 391 N.J.

Super. at 555 (quoting Rivers, supra, 346 N.J. Super. at 421).

Here, no defendant other than Collins claims a disqualifying

relationship with the judge. As we defined the issue in McCann,

7

See Deutsch, supra, 34 N.J. at 197; Rivers, supra, 346 N.J.

Super. at 420-21; Kettles, supra, 345 N.J. Super. at 467-69;

Tucker, supra, 264 N.J. Super. at 553-55; State v. Horton, 199

N.J. Super. 368, 374-77 (App. Div. 1985).

15 A-4816-12T2

none of them would be entitled to his disqualification at the

time he issued the warrants or the nullification of any action

he took in the case.

Moreover, our discussion of Heffington, supra, 952 F.2d at

275, signals that we did not intend such a far-reaching result.

McCann supra, 391 N.J. Super. at 548-50. In Heffington, the

judge who issued a search warrant for the home of one

defendant's stepfather had represented, while serving as a

federal defender, one of the co-defendants in another drug case

involving two of the other co-defendants. Heffington, supra,

952 F.2d at 277-78. The defendant challenged the warrant,

claiming the judge was not neutral and raised several theories

for the invalidation of the warrant. The Court of Appeals

specifically considered defendant's argument that the judge's

prior representation of the co-defendant presented an appearance

of partiality and assumed such an appearance existed. The court

observed that "mere appearances of partiality" rarely rise "to

the level of constitutional error." Id. at 279. Despite its

comment that the judge "may not have been the best possible

'neutral and detached' magistrate in Central California to issue

the search warrant," the court concluded that the appearance was

"not so 'extreme'" to result in a constitutional defect in the

warrant, which was clearly based on probable cause. Id. at 279-

16 A-4816-12T2

80. Not only did we cite Heffington with approval, we observed,

"Professor LaFave notes his agreement with Heffington. . . ."8

McCann, supra, 391 N.J. Super. at 550 (citing 2 Wayne R. LaFave,

Search and Seizure: A Treatise on the Fourth Amendment § 4.2(b)

at 444 (3d ed. 1996)).

In considering whether the other defendants may seek the

invalidation of the warrants based on the judge's prior

prosecution of Collins, we find additional guidance in the

principles that govern whether a defendant has standing to

challenge a search or seizure on constitutional grounds. Our

Supreme Court noted that the fact that "evidence implicates a

defendant in a crime is not, in and of itself, sufficient to

confer standing" to seek the suppression of evidence. State v.

Bruns, 172 N.J. 40, 58 (2002).

There also must be at a minimum some

contemporary connection between the

defendant and the place searched or the

items seized. Despite our broad standing

rule, we acknowledge the soundness of the

general principle that "suppression of the

product of a Fourth Amendment violation can

be successfully urged only by those whose

8

We also noted Professor LaFave's approval of Mandravelis,

supra, the other out of state case we discussed in which the

judge's prior acquaintance with the defendant was considered and

rejected as a basis for invalidating a search warrant. McCann,

supra, 391 N.J. Super. at 548. The Mandravelis court found the

defendant failed to show that the issuing magistrate was

prejudiced against him based on the prior association.

Mandravelis, supra, 325 A.2d at 795.

17 A-4816-12T2

rights were violated by the search itself,

not by those who are aggrieved solely by the

introduction of damaging evidence."

[Ibid. (emphasis added) (quoting Alderman v.

United States, 394 U.S. 165, 171-72, 89 S.

Ct. 961, 965, 22 L. Ed. 2d 176, 185-86

(1969)).]

We conclude that a parallel standard should be applicable

here. Other than Collins, no defendant had any prior

relationship with the judge that required his recusal.

Defendants have cited no authority for the proposition that the

prosecution of a co-defendant would require the judge's

disqualification as to them. In the absence of a constitutional

defect, the mere fact that evidence was obtained and charges

filed as the result of warrants issued by a judge with a

disqualifying conflict as to one defendant is an insufficient

basis for the other defendants to seek the nullification of

orders entered by the judge and the additional relief sought.

V.

We turn to the argument that because the judge was required

to recuse himself based on the prior prosecution of Collins, the

bright-line rule we announced in McCann applies to render his

judicial acts as to her a nullity. There are significant

factual distinctions between this case and the facts in McCann.

First, it was evident in McCann that the municipal court judge

was aware of the disqualifying association at the time he issued

18 A-4816-12T2

the search warrant. In contrast, as Presley's counsel conceded,

here there was "no reason to believe that [the judge] recalled"

the prior prosecution. And, the defendant in McCann did not

delay raising the disqualifying facts as Collins did here for

strategic reasons.

A.

When a judge has knowledge of facts that require

disqualification at the time he or she engages in judicial

conduct involving a party, there is a strong and reasonable

inference that the judge's neutrality will be affected by facts

outside the affidavit or proceeding.9 It is clear that the

judge's knowledge was a foundational assumption for our decision

in McCann. After recounting the facts presented to support

McCann's argument that the judge was not a neutral and detached

magistrate, we stated,

9

Ironically, although the information the judge acquired by

presiding over two cases involving Collins for over one year is

likely to have equaled or exceeded that acquired in his

"personal" prosecution of her, that exposure does not provide a

basis for his disqualification. See Liteky v. United States,

510 U.S. 540, 555, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474, 491

(1994) ("[O]pinions formed by the judge on the basis of facts

introduced or events occurring in the course of the current

proceedings, or of prior proceedings, do not constitute a basis

for a bias or partiality motion unless they display a deep-

seated favoritism or antagonism that would make fair judgment

impossible."); see also Tucker, supra, 264 N.J. Super. at 555

(recognizing that even in cases of "personal" prosecution, the

roles performed by a prosecutor entail varying degrees of

involvement with a defendant).

19 A-4816-12T2

We assume, as we must, that he carefully

reviewed the [] affidavit that revealed

defendant's involvement and that he knew or

should have known that this was his former

client. Under these circumstances, there

was an appearance of impropriety under R.

1:12-1[(g)].[10]

[McCann, supra, 391 N.J. Super. at 554.]

Further, in each of the cases we cited as examples where

the judge should have recused himself or herself based upon a

current or prior relationship with a litigant,11 the

disqualifying facts were known to the judge at the time the

recusal issue was raised.12

In Deutsch, supra, 34 N.J. at 196-97, the defendant moved

to withdraw his non vult plea and for the judge to disqualify

himself before sentencing. The Court found the motions should

have been granted because the judge's brother was an assistant

10

Following our decision in McCann, the rule was redesignated

from R. 1:12-1(f) to R. 1:12-1(g).

11

Horton, supra, 199 N.J. Super. at 368, does not diminish the

significance of a judge's knowledge at the time the

disqualification issue is raised since we reversed the

conviction on other grounds. Id. at 377.

12

Although we did not cite State v. Muraski, 6 N.J. Super. 36,

37-38 (App. Div. 1949) specifically for this proposition, it

stands as a classic example of how facts known to the judge

required recusal. We reversed the conviction of a defendant who

appeared before a magistrate for trial on charges of driving

while intoxicated. The magistrate had been crossing the street

when the defendant narrowly missed hitting him and assisted a

police officer in taking the defendant to a doctor for

examination thereafter.

20 A-4816-12T2

prosecutor and a law partner of the assistant prosecutor

handling the prosecution against defendant.

We reversed the defendant's convictions in Tucker, supra,

264 N.J. Super. at 555, because his motion for disqualification

should have been granted when defense counsel advised the judge

prior to trial that the judge had presented two cases involving

the defendant to the grand jury while the judge was an assistant

prosecutor. Id. at 553.

It was the trial judge who raised the disqualification

issue in Kettles, supra, 345 N.J. Super. at 467-71, when she

recognized the defendant before trial began. She informed the

defense attorney that she had presented a different case against

the defendant to the grand jury when she served as an assistant

prosecutor. On defendant's petition for post-conviction relief,

we held that the trial judge should have recused herself,

notwithstanding the defendant's stated waiver of any objection

to the judge presiding over his trial. Ibid.

In Rivers, supra, 346 N.J. Super. at 419-20, the litigant

filed a motion after a plenary hearing in a matrimonial action,

seeking the trial judge's recusal based on bias and the fact he

had appeared as adverse counsel in the same matrimonial matter

some years earlier. We concluded that the motion for recusal

should have been granted, that the order entered had to be

21 A-4816-12T2

vacated and the matter remanded for a new hearing before a

different judge. Although we announced a bright-line rule in

that case, the rule was limited to circumstances where

disqualification was already required by Rule 1:12-1(c) and

Canon 3(C)(1)(b):

Except when required by the rule of

necessity, where a judge has previously

represented one of the parties in a matter

before him against the other, any judicial

action taken is a nullity, whether the

conflict comes to light during the

proceedings before an order enters or

reasonably soon following the conclusion of

the matter after an order has been entered.

[Rivers, supra, 346 N.J. Super. at 421

(emphasis added).]

Our Supreme Court has also given significant weight to the

public's perception of facts known contemporaneously in

establishing precedent for mandatory disqualifications. See In

re Advisory Letter No. 7-11, supra, 213 N.J. at 66 (municipal

court judge disqualified from handling criminal matters arising

from municipality where his son served as a police officer);

McCabe, supra, 201 N.J. at 38 (holding part-time municipal court

judges must recuse themselves whenever the judge and a lawyer

for a party are adversaries in another open, unresolved case);

DeNike, supra, 196 N.J. at 519 (holding "judges may not discuss

or negotiate for employment with any parties or attorneys

22 A-4816-12T2

involved in a matter in which the judge is participating

personally and substantially").

Defendants argue that whether the judge knew of the prior

prosecution at the time he issued the warrants is irrelevant

because we should conduct an analysis in "hindsight." The facts

as ultimately revealed are properly considered as to the

disqualification issue in light of our concern with even the

appearance of partiality. However, it does not follow that we

should view the facts in hindsight in determining whether

evidence should be suppressed. Our concern is not to punish but

to identify what remedy is "required to restore public

confidence in the integrity and impartiality of the proceedings,

to resolve the dispute in particular, and to promote generally

the administration of justice." DeNike, supra, 196 N.J. at 519.

Even when we apply the exclusionary rule to impose a cost

for Fourth Amendment violations, we "consider the totality of

the information available to the officer at the time of the

conduct" to evaluate whether a constitutional defect exists.

State v. Pitcher, 379 N.J. Super. 308, 315 (App. Div. 2005)

(emphasis added) (citing State v. Pineiro, 181 N.J. 13, 21

(2004)), certif. denied, 186 N.J. 242 (2006). "Information

acquired subsequently cannot be used to either bolster or defeat

the facts known at the time." Id. at 315-16; see also 2 Wayne R.

23 A-4816-12T2

LaFave, Search and Seizure: A Treatise on the Fourth Amendment §

3.2(d) at 57 (5th ed. 2012) ("It is axiomatic that hindsight may

not be employed . . . ."). Similarly, the facts known to the

judge at the time a warrant is issued should carry considerable

weight in assessing what remedy is required to restore public

confidence.

B.

The implicit premise for defendants' argument is that

grounds for a judge's disqualification equate with the level of

partiality that amounts to the constitutional defect that exists

when the reviewing judicial officer cannot qualify as a "neutral

and detached magistrate." See Johnson, supra, 333 U.S. at 13-

14, 68 S. Ct. at 369, 92 L. Ed. at 440. Historical examples of

this constitutional defect have occurred when the magistrate

acted in a law enforcement capacity rather than as a judicial

officer, e.g., Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327,

99 S. Ct. 2319, 2325, 60 L. Ed. 2d 920, 929 (1979); Coolidge v.

New Hampshire, 403 U.S. 443, 453, 91 S. Ct. 2022, 2031, 29 L.

Ed. 2d 564, 575 (1971), and when the search warrant was issued

by an unsalaried justice of the peace who had a personal and

substantial financial interest in issuing the warrant that

precluded the required neutrality, e.g., Connally v. Georgia,

429 U.S. 245, 251, 97 S. Ct. 546, 549, 50 L. Ed. 2d 444, 449

24 A-4816-12T2

(1977). As we observed in McCann, supra, "none of these

decisions has any bearing on the issue before us." 391 N.J.

Super. at 548.

To be sure, there is some overlap between the principles

applicable to disqualification and the constitutional

requirement that warrants be issued by a "neutral and detached

magistrate." Both analyses require the judicial officer to be

impartial. But, the grounds for disqualification are far

broader. To serve the objective to "maintain public confidence

in the integrity of the judiciary," In re Advisory Letter No. 7-

11, supra, 213 N.J. at 71, we are equally concerned with the

appearance of partiality, even in the absence of actual

prejudice to a litigant. Panitch, supra, 339 N.J. Super. at 66-

67.

Generally, the exclusionary rule applies only to evidence

obtained in violation of the Fourth Amendment to the United

States Constitution or Article I, Paragraph 7, of the New Jersey

Constitution. See State v. Evers, 175 N.J. 355, 378-80 (2003).

"The overarching purpose of the [exclusionary] rule is to deter

the police from engaging in constitutional violations by denying

the prosecution any profit from illicitly-obtained evidence."

State v. Williams, 192 N.J. 1, 14 (2007); see also State v.

Harris, 211 N.J. 566, 590 (2012).

25 A-4816-12T2

"[M]ost matters relating to judicial disqualification [do]

not rise to a constitutional level." Aetna Life Ins. Co. v.

Lavoie, 475 U.S. 813, 820-21, 106 S. Ct. 1580, 1584-85, 89 L.

Ed. 2d 823, 831-32 (1986) (quoting FTC v. Cement Inst., 333 U.S.

683, 702, 68 S. Ct. 793, 804, 92 L. Ed. 1010, 1035 (1948)); see

also Heffington, supra, 952 F.2d at 279; McCann, supra, 391 N.J.

Super. at 549-50.13 Rather, issues involving a judge's

qualifications to hear a case are ordinarily resolved "by common

law, statute, or the professional standards of the bench and

bar." Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S. Ct. 1793,

1797, 138 L. Ed. 2d 97, 104 (1997); see also Tumey v. Ohio, 273

U.S. 510, 523, 47 S. Ct. 437, 441, 71 L. Ed. 749, 754 (1927)

("[Not all] questions of judicial qualification . . . involve

constitutional validity. Thus matters of kinship, personal

bias, state policy, remoteness of interest, would seem generally

to be matters merely of legislative discretion."). As we have

discussed, the judge's disqualification here was mandated by

13

In McCann, we described the test for application of the

"bright-line rule" as "similar to that used in judging whether

recusal is warranted," but we also stated that the analysis was

subject to the principles discussed in our opinion, 391 N.J.

Super. at 555, which included our extensive review of Heffington

and its recognition "of civil cases demonstrating 'a measure of

caution on the part of the courts before concluding that mere

appearances of partiality have, in fact, risen to the level of

constitutional error.'" Id. at 549 (quoting Heffington, supra,

952 F.2d at 279).

26 A-4816-12T2

Rule 1:12-1(g), Canon 3(C) of the Code of Judicial Conduct, and

the administrative directive, not by a constitutional violation.

Yet, claiming no bias or knowledge by the judge that would

sully his neutrality, defendants contend this one factor -- the

appearance of partiality -- is sufficient to invalidate all the

judge's acts. In effect, they urge an exclusionary rule to be

administered based solely upon an "appearance of partiality"

sufficient to require disqualification under the Rule, Canon,

and administrative directive, unfettered by any thoughtful

analysis.

Our concern that "justice must satisfy the appearance of

justice," Deutsch, supra, 34 N.J. 206, does not elevate the

appearance of partiality, perceived in retrospect, to a

dispositive factor that requires the suppression of evidence.14

Even when we suppress evidence to preserve constitutional

principles, we recognize that "the exclusionary rule exacts a

14

In fact, the Supreme Court has found that disqualification

may not be required (even by the administrative directive issued

September 19, 1983) when a PCR judge's role in the prior

prosecution of an unrelated indictment was marginal, remote, and

not realized by the judge. The Court therefore concluded

defendant had not established that reason existed that "might

preclude a fair and unbiased hearing and judgment, or which

might reasonably lead counsel or the parties to believe so," in

violation of Rule 1:12-1. State v. Harris, 181 N.J. 391, 511

(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.

2d 898 (2005).

27 A-4816-12T2

high price on society by depriving the jury or judge of reliable

evidence that may point the way to the truth." Williams, supra,

192 N.J. at 14. "When the truth is suppressed and the criminal

is set free, the pain of suppression is felt, not by the

inanimate State or by some penitent policeman, but by the

offender's next victims for whose protection we hold office."

State v. Bisaccia, 58 N.J. 586, 590 (1971). Accordingly, "the

exclusionary rule is not applied indiscriminately." State v.

Gioe, 401 N.J. Super. 331, 339 (App. Div. 2008), certif. denied,

199 N.J. 129 (2009).

Suppression of evidence . . . has always

been our last resort, not our first impulse.

The exclusionary rule generates substantial

social costs, which sometimes include

setting the guilty free and the dangerous at

large. We have therefore been cautious

against expanding it, and have repeatedly

emphasized that the rule's costly toll upon

truth-seeking and law enforcement objectives

presents a high obstacle for those urging

its application. We have rejected

indiscriminate application of the rule, and

have held it to be applicable only where its

remedial objectives are thought most

efficaciously served--that is, where its

deterrence benefits outweigh its substantial

social costs.

[Ibid. (quoting Hudson v. Michigan, 547 U.S.

586, 591, 126 S. Ct. 2159, 2163, 165 L. Ed.

2d 56, 64 (2006).]

Our Supreme Court has similarly stated that the

exclusionary rule should be "applied to those circumstances

28 A-4816-12T2

where its remedial objectives can best be achieved," Williams,

supra, 192 N.J. at 15, and has acknowledged, "Sometimes, the

cost of excluding evidence is not justified by the rule and its

purposes." State v. Herrerra, 211 N.J. 308, 330 (2012); see

also State v. Badessa, 185 N.J. 303, 311 (2005); State v. Hai

Kim Nguyen, 419 N.J. Super. 413, 428 (App. Div.), certif.

denied, 208 N.J. 339 (2011). Therefore, our courts have

declined to apply the exclusionary rule when doing so

would advance none of its purposes --

deterrence, judicial integrity, and imposing

a cost on illicit behavior -- and would

disserve the process of doing justice in

this state by preventing the introduction of

reliable and relevant evidence in a criminal

prosecution. Use of that evidence in this

state will not offend the integrity of our

judicial process.

[Evers, supra, 175 N.J. at 380; see also

Harris, supra, 211 N.J. at 590; Gioe, supra,

401 N.J. Super. at 341-44.]

It is evident that the suppression of the evidence obtained

through the warrants here would serve none of the remedial

purposes of the exclusionary rule. There is no allegation of

police misconduct or a claim that the warrants were issued on

less than probable cause. Defendants concede that the judge was

not biased in discharging his judicial duty. In short, there is

no constitutional imperative for the suppression of evidence

here.

29 A-4816-12T2

VI.

We therefore consider whether nullifying all the judicial

action here is required to restore public confidence in the

integrity of the judicial process.

The nature and extent of how the proceedings have been

tainted by the judge's participation clearly inform the nature

and extent of the remedy required. When a judge engaged in

negotiations for employment with a law firm appearing before

him, the Supreme Court concluded that "a knowledgeable,

objective observer" might reasonably perceive that the

negotiations could have "infected all that occurred

beforehand." DeNike, supra, 196 N.J. at 519. Accordingly, the

Court determined that "a full retrial [was] required to restore

public confidence in the integrity and impartiality of the

proceedings, to resolve the dispute in particular, and to

promote generally the administration of justice." Ibid.; see

also Kettles, supra, 345 N.J. Super. at 471; Rivers, supra, 346

N.J. Super. at 423.

In contrast, in a case we decided after McCann, we

concluded that a retrial was not required despite a municipal

court judge's conflict. State v. Taimanglo, 403 N.J. Super.

112, 122-23 (App. Div. 2008), certif. denied, 197 N.J. 477

(2009). The defendant raised for the first time at sentencing

30 A-4816-12T2

that approximately eighteen years earlier, his business rented a

hot dog cart to the municipal court judge and had not been paid.

The judge recalled the hot dog cart but not the defendant and

determined he had to recuse himself from sentencing the

defendant. After sentencing, defendant was convicted in a trial

de novo in the Law Division. We rejected defendant's argument

on appeal that he was entitled to a new trial based on the

municipal court judge's conflict. Judge Stern stated,

The issue giving rise to his decision arose

after his findings of guilt were rendered.

At the municipal court trial, neither

defendant nor the judge recalled the hotdog

cart incident of approximately eighteen

years earlier, and defendant raised no issue

with respect thereto before the findings

were rendered. In light of these facts, we

decline to hold that the findings of the Law

Division which we review after a trial de

novo are somehow tainted because the record

was made before the municipal court judge.

[Ibid. (emphasis added); see also State v.

Bisaccia, 319 N.J. Super. 1, 21 (App. Div.

1999).]

Recognizing that the action taken to ensure one litigant's

case was heard without the appearance of partiality may come at

some cost to the litigant who is unaffected by the conflict, we

have encouraged litigants to take appropriate steps to limit

expense upon retrial, DeNike, supra, 196 N.J. at 519, and noted

that economic sanctions could be imposed upon a litigant whose

concealment of disqualifying facts resulted in a wasted

31 A-4816-12T2

litigation effort by her adversary. Rivers, supra, 346 N.J.

Super. at 422-23. However, mindful that our ultimate objective

is to maintain public confidence in the judicial process, we

cannot ignore the impact upon public confidence if the case of a

blameless litigant is effectively eviscerated in the interest of

sparing another litigant from a mere appearance of partiality.

That consequence has added resonance when, as here, it was

the unconflicted party, the State, that brought the

disqualifying facts to light while Collins withheld those facts

from the judge for a period of one year while she was appearing

before him in other criminal matters for admittedly strategic

reasons. Although we agree that her failure to raise the issue

earlier should not alone deprive Collins of a remedy, we reject

her contention that she had no obligation to bring the

disqualifying facts to the court's attention until it suited her

strategic purposes. In Rivers, we explicitly stated, "[T]he

obligation to disclose the disqualifying involvement rest[s]

equally upon each party who had knowledge of the involvement."

346 N.J. Super. at 423. To accept Collins's argument would

create the potential for manipulation of the judicial process

that would undermine public confidence.

We therefore conclude that under the circumstances of this

case, a determination as to whether warrants should be

32 A-4816-12T2

invalidated, evidence suppressed, and indictments dismissed

should not be controlled by a "bright-line rule." Because the

remedy sought has the practical effect of applying the

exclusionary rule to the evidence obtained here, the facts here

call for a consideration of the totality of the circumstances as

would apply to challenges to searches and seizures on

constitutional grounds. The following non-exclusive list of

factors are relevant to our analysis here:

(1) the nature and extent of the judge's prior role as a

prosecutor or attorney and the amount of time that passed since

the disqualifying conduct;

(2) the facts known to the judge at the time of the

judicial act that is challenged;

(3) the reasonableness of efforts made by the State and

the judge to identify a conflict before judicial action is

taken;

(4) the evidence of actual partiality on the part of the

judge, including any evidence that his or her prior role

affected the decision made;15

(5) the length of delay in raising the issue and any reason

for such delay;

15

Cf. Murray v. United States, 487 U.S. 533, 542, 108 S. Ct.

2529, 2536, 101 L. Ed. 2d 472, 484 (1988).

33 A-4816-12T2

(6) prejudice to the adverse party caused by the delay in

raising the disqualification issue;

(7) sufficiency of support for the warrant or order issued

by the judge.

No one factor is dispositive but, similar to the analysis

in Fourth Amendment challenges to searches and seizures, our

analysis is informed by whether the nullification of orders and

suppression of evidence will serve the objective of the Code of

Judicial Conduct "to maintain public confidence in the integrity

of the judiciary." In re Advisory Letter No. 7-11, supra, 213

N.J. at 71.

There is no contention here that, despite his "personal

prosecution" of Collins some seven years earlier, the judge was

aware of or influenced by the disqualifying facts at the time he

issued the warrants here. Because there is also no contention

that there was insufficient probable cause to support the

issuance of the warrants, we need not describe the supporting

evidence in detail. However, by way of example of the

sufficiency of the affidavits, we briefly describe the affidavit

for the first warrant, which authorized the installation of a

tracking device on Collins's automobile. The affidavit

contained descriptions of two controlled purchases of cocaine

from Presley and Collins during the week of March 11, 2012, and

34 A-4816-12T2

stated that Collins drove the red Acura registered to her to the

prearranged site for the first controlled buy. The affidavit

also described information obtained from four different

confidential informants (CIs) with prior reliability, three of

whom had purchased cocaine from Collins in the past.

Collins was arraigned by the judge on a prior criminal

matter in January 2011, well over a year before the first

warrant was issued. A suppression motion was filed and not

resolved until November 2011. At that time, the judge arraigned

Collins on another indictment. Motions were filed in that case

as well, and the motion hearing was scheduled for April 2012.

It was within the month before the scheduled motion date for the

second matter to proceed before the judge that the warrants were

issued.

It is unclear from the record exactly how long Collins was

aware of the disqualifying facts while her matters were pending

before the judge. We appreciate the fact that the contact

between a defendant and a prosecutor or appointed counsel,

particularly in a high-volume court proceeding such as the days

on which multiple defendants enter guilty pleas or are

sentenced, may not translate into vivid recollections of the

identities of the participants. Although court records

regarding such appearances may be helpful as reminders, they may

35 A-4816-12T2

not reliably and instantly provide complete information about

all such proceedings. That was the case here. When the

assistant prosecutor alerted the court and defense counsel to

the judge's prior prosecution of Collins, only one prosecution

was identified, and it was only upon further review that three

other indictments were identified.16

Collins admits that she knew of the disqualifying facts,

elected to withhold them, and claimed she was entitled to do so

because she had no responsibility to disclose the facts. But,

as we directed in Rivers, supra, the integrity of the process

requires that all participants share equally in the

responsibility to raise disqualification issues known to them.

346 N.J. Super. at 422-23. By withholding the information here,

Collins placed an unsuspecting judge in an untenable position

where every judicial act was at risk of nullification. This

alone posed a risk to the integrity of the judicial process. We

therefore reject Collins's contention that she was entitled to

withhold her knowledge of the judge's prior prosecution of her

until such time as it served her strategic purposes.

16

As this case demonstrates, neither human memory nor

computerized records are infallible in detecting a conflict of

the sort that existed here. We suggest that the Criminal

Practice Committee consider whether a procedure might be

instituted to alert the court and parties of conflicts based on

prior representation or prosecution before significant judicial

action is undertaken.

36 A-4816-12T2

If her argument were accepted, Collins's silence would also

result in significant prejudice to the State. As we have noted,

she appeared before the judge for arraignment on two separate

matters and litigated a suppression motion before him, all

within the year before the warrants were issued. If she had

raised the disqualifying facts at any time during that period,

the judge would have recused himself prior to issuing the

warrants, and the matter would have proceeded before another

judge without any threat to the continued prosecution.

Our analysis of these factors leads us to conclude that a

nullification of the judge's orders here would not serve the

purpose of the disqualification rules and Code of Judicial

Conduct. We do not retreat from the principle that when the

prior prosecutions were raised, the judge was required to recuse

himself. However, viewing the facts from the perspective of a

"fully informed" member of the public, there is little reason to

lose confidence in the integrity of the judicial process when it

is undisputed that the judge was unaware of the seven-year-old

disqualifying facts and acted in an unbiased matter. We are

also convinced that the same "fully informed" member of the

public would be dismayed by the effect on the integrity of the

judicial process if a defendant were permitted to manipulate the

outcomes of prosecutions not tainted by constitutional defect by

37 A-4816-12T2

having the discretion to invoke dispositive claims of judicial

disqualification at will.

The order denying defendants' motions is affirmed in all

respects.

38 A-4816-12T2