Argued November 6, 2013
Approved for Publication July 17, 2014.
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).
Before Judges FISHER, ESPINOSA and O'CONNOR.
[436 N.J.Super. 442] OPINION
[436 N.J.Super. 443] ESPINOSA, J.A.D.
In State v. McCann, 391 N.J.Super. 542, 919 A.2d 136 (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 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.
Like so many Superior Court Judges, the judge here served as an assistant prosecutor before he was appointed to the bench in 2007. 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 [436 N.J.Super. 444] 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. 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. A status conference was scheduled, with motions, 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 [436 N.J.Super. 445] 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 the judge had prosecuted Collins in an earlier matter, Indictment No. 04-04-668. 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.
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 [436 N.J.Super. 446] 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.
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.
Defendants raise the following issues for our consideration:
[436 N.J.Super. 447]POINT I
THE  ORDERS/WARRANTS ISSUED IN FURTHERANCE OF THE STATE'S INVESTIGATION OF THE CRIMINAL 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 .
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.
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 Advisory Comm., 213 N.J. 63, 71, 61 A.3d 136 (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, 168 A.2d 12 (1961) (quoting Offutt v. [436 N.J.Super. 448] 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, 958 A.2d 446 (2008); see also State v. McCabe, 201 N.J. 34, 42-43, 987 A.2d 567 (2010); State v. Kettles, 345 N.J.Super. 466, 469-71, 785 A.2d 925 (App. Div. 2001), certif. denied, 171 N.J. 443, 794 A.2d 182 (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, 770 A.2d 1237 (App. Div. 2001) (quoting State v. Marshall, 148 N.J. 89, 279, 690 A.2d 1, 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." Marshal ...