On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, I-1452-08-92.
Before Judges King, Cuff and Winkelstein.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 11, 2001
Following his 1996 conviction for conspiracy to distribute a controlled dangerous substance (CDS) (cocaine) contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(2), and the exhaustion of his direct appeal remedies, defendant Alexander Kettles filed a petition for post-conviction relief (PCR). Defendant asserted that he was entitled to a new trial because the trial judge should have been disqualified from presiding at his trial. The PCR judge agreed, concluding that a conflict of interest existed, but disqualified the trial judge only from imposing sentence. Defendant was resentenced from an extended term of fifteen years with seven years parole ineligibility to ten years with three years of parole ineligibility; his request for a new trial was denied.
An evidentiary hearing was conducted because relevant conversations among the trial judge, the assistant prosecutor and the defense attorney at defendant's trial did not occur on the record. The PCR judge found that the trial judge had served as an assistant prosecutor in Middlesex County prior to her appointment to the bench. At the commencement of the trial, the trial judge recognized defendant. She recalled that she had presented evidence against him in another matter before a Middlesex County Grand Jury, and the grand jury had indicted defendant. The trial judge informed the defense attorney who, in turn, advised the defendant of the judge's prior involvement with him. Defendant advised his attorney that he did not want another judge to try his case. According to the defense attorney, defendant was "O.K." with the judge assigned because he was pleased with her pretrial rulings. These findings are well-supported by the evidence. State v. Locurto, 157 N.J. 463, 470-71 (1999); State v. Johnson, 42 N.J. 146, 162 (1964).
The PCR judge further found that defendant knowingly and purposefully waived any objection to the trial judge's involvement in his case. Therefore, he denied defendant's request for a new trial. He concluded, however, that the trial judge's prior involvement with defendant disqualified her from imposing sentence. The PCR judge proceeded to modify the extended term of fifteen years with a seven-year period of parole ineligibility to a regular term of ten years with a three-year period of parole ineligibility.
On appeal, defendant raises the following points:
THE DEFENDANT[']S RIGHT TO A FAIR, IMPARTIAL, UNBIASED, AND CONFLICT FREE, TRIAL COURT, AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARCTIC[LE]1 PART 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN SUPERIOR COURT JUDGE FAILED TO RECUSE HERSELF ON HER OWN OBLIGATORY MOTION SUA SPONTE FROM HEARING A CRIMINAL CASE INVOLVING A DEFENDANT WHO SHE HAD PERSONALLY PROSECUTED IN A PRIOR CRIMINAL CASE.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ARCTIC[LE] 1 PART 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE P.C.R. COURT FAILED TO ENFORCE THE RULES GOVERNING THE COURTS' CODE OF JUDICIAL CONDUCT UPON A SUPERIOR COURT JUDGE WHO COMMITTED PLAIN ERROR BY NOT RECUSING HERSELF SUA SPONTE FROM HEARING A MATTER INVOLVING A CRIMINAL DEFENDANT WHO SHE PREVIOUSLY PROSECUTED IN ANOTHER C.D.S. RELATED MATTER WHILE SHE WAS AN ASSISTANT PROSECUTOR.
DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL TOLD THE JURY IN HIS SUMMATION ...