State of New Jersey v. Edward Holland , 449 N.J. Super. 427 ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0315-15T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
April 5, 2017
v.
APPELLATE DIVISION
EDWARD HOLLAND,
Defendant-Appellant.
_______________________________
Submitted February 2, 2017 - Decided April 5, 2017
Before Judges Lihotz, Hoffman and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 10-11-0667.
Joseph E. Krakora, Public Defender, attorney
for appellant (Rasheedah Terry, Designated
Counsel, on the brief).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent
(Danielle R. Pennino, Assistant Prosecutor,
of counsel and on the brief).
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
Defendant Edward Holland appeals from a July 23, 2015 Law
Division order denying his petition for post-conviction relief
(PCR). On appeal, defendant argues:
THE PCR COURT'S RULING THAT DENIED
DEFENDANT'S MOTION FOR POST-CONVICTION
RELIEF MUST BE REVERSED BECAUSE THERE WAS A
SUBSTANTIAL DENIAL OF DEFENDANT'S
CONSTITUTIONAL RIGHTS IN THE PROCEEDINGS
BELOW.
A. Trial Counsel's Failure to Seek the
Recusal of the Trial Judge Violated
Defendant's Sixth Amendment Right to
the Effective Assistance of Counsel.
B. [The trial judge's] Failure to Recuse
Himself Constitutes a Substantial
Denial of Defendant's Right to a Fair
and Unbiased Trial.
Following our review, we conclude the interests of justice
require a judge to avoid all inference of impropriety. Although
this record does not definitively show the trial judge
remembered defendant was his former client many years ago, there
is certainty of his prior representation of defendant on more
than one criminal matter. Consequently, we are constrained to
reverse the denial of PCR, vacate the judgment of conviction,
and remand the matter for retrial.
I.
Defendant was arrested, charged, and convicted by a jury of
third-degree possession of a controlled dangerous substance,
heroin, with the intent to distribute, N.J.S.A. 2C:35-5(b)(3),
and third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1).
The State's evidence included defendant's admissions to the
arresting officer, defendant's custodial statement, and heroin
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seized pursuant to a warrant. Following the verdict, the State
moved to impose a mandatory extended term sentence, N.J.S.A.
2C:43-6(f), which was granted. After merger, the trial judge
sentenced defendant to a custodial term of seven years, subject
to a three-year period of parole ineligibility.
Defendant appealed from his conviction and sentence. He
challenged the State's summation and argued his sentence was
excessive. In an unpublished opinion, this court rejected
defendant's arguments and affirmed the judgment of conviction
and the imposed sentence. State v. Holland, No. A-2007-12 (App.
Div. Aug. 19, 2014).
Defendant timely filed a petition for PCR. He argued
counsel provided ineffective assistance because counsel failed
to seek the judge's recusal, knowing the trial judge had
represented defendant in the past. During the evidentiary
hearing, defendant's counsel testified defendant recognized the
trial judge, explaining the judge prior to taking the bench, had
represented defendant several times in connection with criminal
charges, including drug offenses. Counsel additionally
testified "there was an [in-chambers] conference" regarding the
issue. Counsel asserted the trial judge "expressed that he had
known [defendant]" and had a positive opinion of him. She
acknowledged she did not move for recusal, stating defendant
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believed it was beneficial to allow his former counsel to
preside over his case.
Defendant testified, relating the nature of the prior legal
representation by the trial judge, asserting there were separate
matters in both the Superior and municipal courts. Defendant
refuted his attorney's testimony suggesting he was pleased to
learn his former lawyer was assigned to preside over his trial,
stating, "I was bothered by it."
The State presented no witnesses, but offered
certifications from the assistant prosecutors who tried the
case, stating they were told by defense counsel the judge had
previously represented the defendant and believed the judge was
advised of the prior representation. Each of the assistant
prosecutors certified: "It was my understanding . . . defendant
was adamant that he wanted to proceed with [his former attorney]
as the trial judge."
In a written opinion, the PCR judge confirmed defendant was
previously represented by the trial judge in a 1993 criminal
charge and a 1995 violation of probation. He found defense
counsel and the prosecutors knew of the prior representation
provided by the trial judge. Further, he found defendant was
pleased by this fact and characterized the decisions not to seek
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recusal or "place anything on the record" as "a strategic trial
strategy." The judge then found:
Despite the testimony to the contrary
by [defense counsel], this [c]ourt cannot
and does not find, by a preponderance of the
evidence, that [the trial judge] had any
recollection of having represented
[defendant] on a prior occasion. This
finding is based upon several factors.
First, there is no record in the case at bar
that reflects that knowledge. Clearly, [the
trial judge] would have and should have
addressed the issue on the record if it was
brought to his attention. Second, the
representation occurred 17 years prior to
the start of trial and it would be
objectively reasonable and understandable
that [the trial judge] simply did not
remember [defendant] because of the passage
of time. Third, there was nothing in the
record in front of him, such as testimony,
documents or the pre-sentence report that
would have brought his attention to the fact
that he represented . . . defendant 17 years
prior [sic]. Finally, while [defense
counsel] recalls a conference in chambers
regarding that issue, specifics of that
conference have not been provided to the
[c]ourt, such as when and under what
circumstances that conference occurred.
This is not to imply that [defense counsel]
was not credible, but rather, her memory of
the events might be clouded by the passage
of time. Further[,] the certifications
provided by the Assistant Prosecutors fail
to allege with any level of specificity how
and under what circumstances [the trial
judge] was aware of his prior representation
of . . . defendant. It seems highly
unlikely and improbable that four attorneys,
the [j]udge and . . . defendant would fail
to place anything on the record regarding
the prior representation between the trial,
sentencing and appeal.
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Relying on these findings, the PCR judge stated he could
not "second-guess counsel's strategic decisions with the benefit
of hindsight." Therefore, he concluded counsel's performance
was not deficient. He also found defendant's right to a fair
trial was not compromised as there was overwhelming evidence of
guilt, the trial results were reliable, and defendant suffered
no prejudice. He denied defendant's petition for relief. This
appeal ensued.
II.
"Post-conviction relief is New Jersey's analogue to the
federal writ of habeas corpus." State v. Goodwin, 173 N.J. 583,
593 (2002) (quoting State v. Preciose, 129 N.J. 451, 459
(1992)). The process affords an adjudged criminal defendant a
"last chance to challenge the 'fairness and reliability of
verdict.'" State v. Nash, 212 N.J. 518, 540 (2013) (quoting
State v. Feaster, 184 N.J. 235, 249 (2005)); see also R. 3:22-1.
"Post-conviction relief is neither a substitute for direct
appeal, R. 3:22-3, nor an opportunity to relitigate cases
already decided on the merits, R. 3:22-5." Preciose, supra, 129
N.J. at 459; see also State v. Echols, 199 N.J. 344, 357 (2009).
It is well-settled that to set aside a
conviction based upon a claim of ineffective
assistance of counsel, a petitioner must
prove, by a preponderance of the evidence,
that (1) counsel performed deficiently, and
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made errors so serious that he or she was
not functioning as counsel guaranteed by the
Sixth Amendment; and (2) defendant suffered
prejudice as a result. Strickland v.
Washington, 466 U.S. 668, 687, 694, 104 S.
Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693,
698 (1984); [] Preciose, [supra,] 129 N.J.
[at] 459 (reciting preponderance of the
evidence standard of proof) . . . .
[State v. L.A., 433 N.J. Super. 1, 13 (App.
Div. 2013).]
Strickland's two-prong test was adopted by New Jersey in State
v. Fritz, 105 N.J. 42, 58 (1987).
In our review of a denial of a PCR petition following an
evidentiary hearing, we afford deference to the PCR judge's
factual findings, as long as they are "supported by sufficient
credible evidence in the record." Nash, supra, 212 N.J. at 540;
see also State v. Elders, 192 N.J. 224, 244 (2007) ("A trial
court's findings should be disturbed only if they are so clearly
mistaken 'that the interests of justice demand intervention and
correction.'" (quoting State v. Johnson, 42 N.J. 146, 162
(1964))). However, we do not defer to legal conclusions, which
we review de novo. Nash, supra, 212 N.J. at 540-41; see State
v. Gregory, 220 N.J. 413, 419-20 (2015).
Generally, four reasons afford a basis to grant PCR: (1)
substantial denial of a state or federal constitutional right;
(2) lack of jurisdiction by the sentencing court; (3) imposition
of an excessive or unlawful sentence; or (4) any other ground
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available "as a basis for collateral attack upon a conviction."
Preciose, supra, 129 N.J. at 459; R. 3:22-2. When raising a
claim of ineffective assistance of counsel, a defendant "must do
more than make bald assertions that he [or she] was denied the
effective assistance of counsel. He [or she] must allege facts
sufficient to demonstrate counsel's alleged substandard
performance." State v. Cummings, 321 N.J. Super. 154, 170 (App.
Div.), certif. denied, 162 N.J. 199 (1999). The burden rests
with defendant to prove such a violation "by a preponderance of
the credible evidence." Preciose, supra, 129 N.J. at 459.
III.
The issue presented in this appeal, whether counsel should
have insisted on the trial judge's recusal, is unusual.
N.J.S.A. 2A:15-50 permits a party to move for the recusal of a
judge, prior to commencement of trial. Defendant argues
counsel's failure to seek recusal deprived him of a fair trial.
The State rejects this position, suggesting the decision
represents a "valid trial strategy," which cannot be second
guessed.
Before the PCR court, defendant's trial counsel testified
defendant wanted to be tried by his former counsel.
Unsurprisingly, defendant offered a contrary view. Though we
recognize defendant's claim of ineffective assistance of trial
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counsel is not one ordinarily brought on direct appeal, State v.
Hess, 207 N.J. 123, 145 (2011), defendant's underlying theory,
that the trial judge should have recused himself, certainly
could have been raised on direct appeal. See R. 3:22-4 (barring
PCR claims which could have been brought on direct appeal). In
many respects, defendant's argument is precisely the sort of
"sandbagging" the Strickland standard is designed to defeat.
Cf. Wainwright v. Sykes, 433 U.S. 72, 103 n.5, 97 S. Ct. 2497,
2515 n.5, 53 L. Ed. 2d 594, 618 n.5 (1977) (Brennan, J.,
concurring) (defining sandbagging in this context as when a
defendant voluntarily withholds a claim from the trial court,
only to raise it on appeal).
Despite this likely possibility, we are convinced we need
not evaluate counsel's actions at this time because the
paramount issue is the effect of a trial judge presiding over
the criminal trial of his former criminal client. Following our
review, we reject the assumption by the PCR judge, who denied
PCR by speculating the trial judge did not recall his
representation. This is not an issue on which supposition
suffices. "The question raises concerns about public confidence
in the integrity and impartiality of our system of justice . . .
[b]ecause judges must avoid not only actual conflicts but also
the appearance of impropriety to promote the public's trust . .
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. ." State v. McCabe, 201 N.J. 34, 38 (2010). There can be no
compromise of the "bedrock principle articulated in Canon 1 of
the Code of Judicial Conduct that '[a]n independent and
honorable judiciary is indispensable to justice our society.'"
Id. at 42-43 (quoting DeNike v. Cupo, 196 N.J. 502, 514 (2008)).
Equally important to our system of justice is the need to
safeguard a criminal defendant's right to a fair and unbiased
trial. The unequivocal evidence is, in the past, the trial
judge acted as counsel for defendant on similar drug offenses.
Regardless of the strength of the State's case in this matter,
we are compelled to vacate the judgment of conviction.
We start by examining principles governing a judge's
disqualification. First, the Legislature has addressed the
issue, mandating the recusal of judges for reasons set forth in
N.J.S.A. 2A:15-49. Pertinent to this matter, the statute
provides:
No judge of any court shall sit on the trial
of or argument of any matter in controversy
in a cause pending in his court, when he [or
she]:
. . . .
b. Has been attorney of record or counsel
for a party to such action[.]
[Ibid.]
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This standard is reinforced by our Court Rules and the Code
of Judicial Conduct. "Our rules [] are designed to address
actual conflicts and bias as well as the appearance of
impropriety." McCabe, supra, 201 N.J. at 43. Specifically,
Rule 1:12-1(g) provides a judge "shall be disqualified on the
court's own motion and shall not sit in any matter . . . when
there is any other reason which might preclude a fair and
unbiased hearing and judgment, or which might reasonably lead
counsel or the parties to believe so."
Our Supreme Court has repeatedly emphasized New Jersey
"judges are required to maintain, enforce, and observe 'high
standards of conduct so that the integrity and independence of
the judiciary may be preserved.'" DeNike, supra, 196 N.J. at
514 (quoting Code of Judicial Conduct Canon 1); see also McCabe,
supra, 201 N.J. at 41. Further, Rule 1:18 requires all judges
abide the Code of Judicial Conduct, included as an appendix to
the Part 1 rules. See Code of Judicial Conduct, Pressler &
Verniero, Current N.J. Court Rules, Appendix to Part 1 at 517
(2017). "The Code is comprised of seven canons that provide
both broad and specific standards governing the conduct of
judges." In re Advisory Letter No. 7-11 of the Supreme Court
Advisory Comm., 213 N.J. 63, 71 (2013).
The "overarching objective of the Code of
Judicial Conduct is to maintain public
11 A-0315-15T4
confidence in the integrity of the
judiciary." In re Advisory Letter[,
supra,], 213 N.J. [at] 71. Such confidence
"depends on a belief in the impersonality of
judicial decision-making." 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).
[State v. Presley, 436 N.J. Super. 440, 447
(App. Div. 2014).]
Canon 3 of the Code was amended on September 1, 2016. The
Canon requires: "A judge shall perform the duties of judicial
office impartially and diligently." Thereafter, several
sections, added by the amendment, provide instances specifically
directing disqualification. Although we are aware these
modifications were adopted long after defendant's trial and the
PCR hearing, we acknowledge the guidance of the Supreme Court on
this subject. Relative to this matter is Canon 3.17(B)(4)(b),
which states:
Judges shall disqualify themselves based on
their prior professional relationships as
follows:
. . . .
(b) In proceedings in which a party
was a former private client for whose matter
the judge had primary responsibility,
disqualification is necessary for a period
of seven years following the conclusion of
that representation. However,
disqualification for a period of time in
excess of seven years from the conclusion of
the representation may be required in
certain circumstances. In making that
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determination, a judge should consider,
among other relevant factors: 1) the scope
of the representation, including but not
limited to the cumulative number of matters
handled by the judge, whether a continuous
fiduciary relationship existed with the
client over an extended period of time, and
the length of time that has elapsed since
the conclusion of that representation; 2)
the duration of the representation; 3) the
nature of the representation, including but
not limited to the acrimonious nature of the
underlying litigation and any information
acquired about the client as a consequence
of that representation that could cast doubt
on the judge's impartiality; and 4) in
respect of a corporate client, whether the
principals of the entity are the same as
existed during the representation.
[Code of Judicial Conduct, Canon
3.17(B)(4).]
See Presley, supra, 436 N.J. Super. at 464 (identifying similar
factors when reviewing issue of judicial recusal).
Additional subsections of Canon 3.17 direct:
(C) A disqualification required by
this rule is not subject to the parties'
waiver. The judge shall, however, disclose
to the parties any circumstance not deemed
by the judge to require disqualification but
which might be regarded by the parties as
affecting the judge's impartiality.
(D) A judge shall address disquali-
fication or issues of recusal and
disqualification promptly upon recognition
of grounds which would give rise to
partiality or the appearance of partiality.
[Code of Judicial Conduct, Canon 3.17(C),
(D).]
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The official comment accompanying Canon 3.17 highlights the
Court's pronouncement in DeNike. When determining whether
"disqualification is necessary to protect the rights of
litigants and preserve public confidence in the independence,
integrity and impartiality of the judiciary," "[w]ould a
reasonable, fully informed person have doubts about the judge's
impartiality?" Code of Judicial Conduct, Pressler & Verniero,
Current N.J. Court Rules, Appendix to Part 1, comment 1, 2 to
Canon 3, Rule 3.17 at 524 (2017) (quoting DeNike, supra, 196
N.J. at 517). Finally, discussing whether disqualification is
required in a proceeding where a litigant was a former private
client of the judge more than seven years earlier, the comment
expressly references "judges should be guided by DeNike v. Cupo,
196 N.J. 502." Pressler & Verniero, supra, comment 5 to Canon
3, Rule 3.17 at 527.
Here, the record identifies the trial judge's
representation of defendant occurred seventeen years earlier.
Indeed, this is well beyond the mandatory seven-year period
commanding recusal stated in Canon 3.17(B)(4)(b). However, we
are unconvinced that resolves the question. "Neither Canon 3[]
nor Rule 1:12-1 recite an exclusive list of circumstances which
disqualify a judge and require recusal from a matter." In re
Advisory Letter, supra, 213 N.J. at 73 (alteration in original)
14 A-0315-15T4
(quoting State v. Kettles, 345 N.J. Super. 466, 470 (App. Div.
2001), certif. denied, 171 N.J. 443 (2002)). A review of
additional judicial determinations provides guidance governing
recusal when a judge is faced with a litigant who is a former
client.
In Rivers v. Cox-Rivers, 346 N.J. Super. 418 (App. Div.
2002), this court considered the propriety of a trial judge
presiding over a matrimonial matter involving a litigant who,
fourteen years earlier, was a client of the judge's former law
firm, and for whom the judge appeared as counsel in a prior
divorce proceeding involving the same parties. Id. at 420. The
judge denied the motion for recusal filed following his ruling
on the merits of the matrimonial matter. Ibid. In doing so,
the judge specifically noted at the time he entered his order he
neither recognized the litigants nor recalled the prior
representation. Id. at 420-21.
The reviewing panel concluded a "bright-line rule" was
necessary "to maintain public confidence in the judicial
decision making process," stating:
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
15 A-0315-15T4
the matter after an order has been entered.
See N.J.S.A. 2A:15-49b; R. 1:12-1(c), (f).
That result is required by the need "to
maintain public confidence in the integrity
of the judicial process, which in turn
depends on a belief by litigants and the
general public alike in the impartiality of
judicial decisionmaking."
[Id. at 421 (quoting Kettles, supra, 345
N.J. Super. at 469-70).]
We further held "the conflict is non-waivable by the parties,
either expressly or implicitly" stating "[i]f a judge is
precluded from presiding over a matter in which a former client
is involved, especially where the current adversary is the party
against whom the prior representation occurred, any action taken
by the judge as a result of the proceeding cannot be recognized
as valid." Ibid. Significantly, our decision relied on Nobel
and Kittles, which were criminal proceedings, noting "the public
policy imperatives are the same in civil cases." Id. at 422.
A similar approach was followed in State v. McCann, 391
N.J. Super. 542 (2007), when a panel of this court held, "[i]n
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
. . . will be applicable." Id. at 555.
16 A-0315-15T4
We recognize the "bright-line" was not specifically
incorporated by the Supreme Court in the recently revised
version of Canon 3.17. We also recognize the instant case is
distinguishable from Rivers, in that here, the judge represented
defendant in an unrelated proceeding. See Rivers, supra, 346
N.J. Super. at 422 ("Here, not only are the parties identical
but the underlying subject matter is the same, i.e., the
marriage and the parties' rights stemming therefrom."). We also
recognize the instant case may be distinguished from McCann, as
a matter of degree, not of kind. McCann, supra, 391 N.J. Super.
at 544-45, 554 (holding disqualification was necessary where the
motion judge previously represented defendant for several years,
and was thus not a "neutral and detached magistrate.").
In the past we have not differentiated between civil and
criminal matters in the application of the rule precluding a
judge from adjudicating a matter involving a former client. See
Rivers, supra, 364 N.J. Super. at 421-22. However, we conclude
a criminal prosecution, which implicates the liberty interest of
a criminal defendant, requires a strict application to assure
impartiality, to avoid the appearance of impropriety, and
importantly, to preserve the integrity of the judicial process.
We therefore distinguish the requirements of Canon
3.17(B)(4)(b), which sets a seven-year bar for mandatory
17 A-0315-15T4
recusal, as insufficient in criminal proceedings. The necessity
of preserving the integrity of impartiality and avoiding all
appearances of impropriety must be paramount. Judges must
always "refrain . . . from sitting in any causes where their
objectivity and impartiality may fairly be brought into
question." DeNike, supra, 196 N.J. at 514 (quoting State v.
Deutsch, 34 N.J. 190, 206 (1961)).
Our determination finds support in provisions of an
Administrative Directive delineating the Supreme Court's
guidelines concerning "Disqualification of Judges in Criminal
Matters." The directive predominantly addresses circumstances
facing a judge who previously served as a prosecutor, public
defender, or assistant in one of those offices. However, the
directive also includes this charge:
A judge should disqualify himself [or
herself] from hearing a criminal matter
involving a defendant who the judge, in his
previous capacity, had personally prosecuted
or defended, or had represented in a civil
matter in the past. The reason for this is
that the appearance of judicial impartiality
must be preserved.
"There can be no doubt that the directive in question, embodying
guidelines promulgated by the Supreme Court concerning judicial
disqualifications in criminal cases, has the full force and
effect of law." State v. McNamara, 212 N.J. Super. 102, 108-09
(App. Div. 1986), certif. denied, 108 N.J. 210 (1987). The
18 A-0315-15T4
directive was issued on September 19, 1983, and has not been
modified or repealed.
We also highlight the warning sounded by this court in
State v. Horton, 199 N.J. Super. 368 (App. Div. 1985), which
reversed a conviction and granted a new trial to a defendant who
noted during allocution the judge had been his attorney. We
held: "The potential for invidious, though, we are sure,
unfounded, suppositions as to the court's motive in trying and
sentencing a former client causes us strongly to suggest that a
trial judge faced with such situation should recuse himself and
have another judge assigned to try the case." Id. at 377. We
explained:
The public has no way of knowing (a) what
confidences, if any, defendant imparted to
the [the judge] when represented by him . .
. (b) whether the judge was a public
defender or, if not, whether there was a fee
problem; or (c) whether there were other
offenses that defendant admitted to during
conferences with his then attorney. . . .
[T]he prior lawyer-client relationship could
also have given the appearance of
influencing trial rulings.
[Id. at 375.]
For these reasons we cannot countenance the State's
suggestion, adopted by the PCR judge, to deny relief because
defendant engaged in a trial strategy to proceed to trial before
a judge who previously represented him. Even if this were true,
19 A-0315-15T4
we reject such a contention as it would compromise the
principles that must guide members of the judiciary. See State
v. Tucker, 264 N.J. Super. 549, 555 (App. Div. 1993) (explaining
even an appearance of impropriety can erode public confidence);
see also Rivers, supra, 346 N.J. Super. at 422-23 ("If there is
validity to the sense of the trial court judge in this matter
that defendant knew of the disqualifying involvement early on,
and was withholding the information as a 'trump card,' that
alone is no ground for recognizing the inherently invalid
order.").
Here, it is undisputed the judge's prior representation of
defendant was known to all parties at the time of trial.
Therefore, when an instance arises where a judge previously
represented a criminal defendant, we direct the prior
representation and relationship shall be clearly stated on the
record, and the judge then be disqualified from proceeding in
the matter. See Horton, supra, 199 N.J. Super. at 375 ("If for
no other reason than to give both the State and defendant an
opportunity to make a record concerning potential
disqualification, the very least that the trial judge should
have done was to place this information on the record at the
commencement of the proceeding."). To demand any less would
invite questions about the impartiality of the justice system
20 A-0315-15T4
and thereby "threaten[] the integrity of our judicial process."
DeNike, supra, 196 N.J. at 515.
Accordingly, we reject the conclusion of the PCR judge that
the trial judge was unaware of the prior representation, despite
counsels' statements to the contrary. We further reject the PCR
judge's rationale that defendant suffered no prejudice by what
was found to be an employed trial strategy. The prejudice
envelops the entire process by casting doubt and leaving the
lingering question of whether a trial judge's familiarity
favored a defendant, or conversely, caused a trial judge to
overcompensate so as not to reflect an appearance of bias. We
further conclude defendant's late presentation of the issue will
not override the public policy to assure an independent,
impartial judiciary. "[J]ustice must satisfy the appearance of
justice." Deutsch, supra, 34 N.J. 190 at 206 (quoting Offutt v.
United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99 L. Ed. 11,
16 (1954)).
The order denying PCR is reversed and we remand the matter
to the Criminal Presiding Judge to vacate the judgment of
conviction and reassign the matter for retrial.
Reversed and remanded.
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