State of New Jersey v. Aakash A. Dalal

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3715-13T3
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Respondent, November 21, 2014
v. APPELLATE DIVISION
AAKASH A. DALAL,
Defendant-Appellant.
_______________________________________________
Argued November 12, 2014 – Decided November 21, 2014
Before Judges Fisher, Nugent and Manahan.
On appeal from the Superior Court of New
Jersey, Law Division, Bergen County,
Indictment Nos. 13-03-00374 and 13-08-01118.
Brian J. Neary argued the cause for
appellant (Law Offices Brian J. Neary,
attorneys; Mr. Neary, on the brief).
Annmarie Cozzi, Senior Assistant Prosecutor,
argued the cause for respondent (John L.
Molinelli, Bergen County Prosecutor,
attorney for respondent; Ms. Cozzi, of
counsel and on the brief; Elizabeth R.
Rebein, Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
We granted leave to appeal to examine an order which denied
defendant's motion to recuse the Bergen County judiciary from
presiding over this matter. The problem at hand arose when the
State advised it would offer evidence at trial that defendant
threatened the lives of two Bergen judges. Not because we
possess any doubt about the trial judge's ability to fairly and
impartially preside over this matter, but because, in the final
analysis, "justice must satisfy the appearance of justice,"
Offutt v. United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99
L. Ed. 11, 16 (1954), we reverse and remand to the assignment
judge for entry of an appropriate order.
On February 29, 2012, defendant was charged in a Complaint-
Summons with criminal mischief, a disorderly-persons offense,
N.J.S.A. 2C:17-3(a)(1), based on an allegation that he spray-
painted anti-Semitic graffiti on a Hackensack synagogue. The
next day defendant was charged in a Complaint-Warrant with:
first-degree aggravated arson of a Rutherford synagogue,
N.J.S.A. 2C:17-1(a); first-degree bias intimidation, N.J.S.A.
2C:16-1(a); and first-degree conspiracy to commit aggravated
arson, N.J.S.A. 2C:5-2(a)(2) and N.J.S.A. 2C:17-1(a). He was
also charged that same day, by way of another Complaint-Warrant,
with fourth-degree bias intimidation. The day after that,
defendant was charged in another Complaint-Summons with the
disorderly persons offense of criminal mischief at a Maywood
synagogue, and fourth-degree bias intimidation, and in another
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Complaint-Warrant with two counts of first-degree conspiracy to
commit aggravated arson.
On March 2, 2012, bail was set by the criminal presiding
judge (hereafter "presiding judge") at $2,500,000. Defendant's
motion for a bail reduction was denied by another judge
(hereafter "bail judge") on April 20, 2012. Defendant moved for
leave to appeal, and we summarily reduced the amount of bail to
$1,000,000; we also remanded for consideration of other
appropriate bail conditions.
Before the remand proceedings could occur, defendant was
charged in another Complaint-Warrant with: first-degree
conspiracy to murder a Bergen County Assistant Prosecutor,
N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:11-3; third-degree
conspiracy to possess a firearm for an unlawful purpose,
N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:39-4; and third-degree
terroristic threats, N.J.S.A. 2C:12-3(b). The presiding judge
set bail at $3,000,000 without a ten percent option.
On November 14, 2012, defendant moved before the assignment
judge for a change of venue and the recusal of the Bergen County
Prosecutor's Office.
On March 1, 2013, the grand jury returned an indictment
charging defendant with: fourth-degree bias intimidation at a
Maywood synagogue; fourth-degree criminal mischief at a
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Hackensack synagogue; three counts of first-degree conspiracy to
commit arson; two counts of first-degree aggravated arson; three
counts of first-degree bias intimidation; three counts of
second-degree possession of a destructive device, a Molotov
cocktail, for an unlawful purpose; three counts of third-degree
unlawful possession of a destructive device; first-degree
attempted arson; third-degree hindering apprehension; first-
degree terrorism, N.J.S.A. 2C:38-2(b)(1); and second-degree
terrorism, N.J.S.A. 2C:38-4.
Defendant moved for a reduction of bail. Another judge,
who later entered the order now in question, set a consolidated
bail on all charges of $4,000,000. Defendant again moved for
leave to appeal. We denied this application on July 30, 2013.
A week later, the grand jury returned an indictment
charging defendant with: first-degree conspiracy to murder a
Bergen County Assistant Prosecutor (the same prosecutor referred
to in the earlier charges); second-degree conspiracy to possess
an assault firearm, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:39-
5(f); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a).
Defendant promptly moved to dismiss both indictments; he
also sought to recuse the presiding judge from further
involvement. In responding to the latter, the State
acknowledged there was "a significant reason" for recusal
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because the State intended "to introduce into evidence at the
trial in this case evidence that defendant has listed [the
presiding judge] as a target." The presiding judge transferred
control over the proceedings to another judge (hereafter "the
trial judge"), thereby viewing the motion to recuse as moot.
At approximately the same time, defendant continued to
press his motion to change venue and expanded on the application
by referring to statements made by the Bergen County Prosecutor
during a news conference. The trial judge denied defendant's
motion by order entered on November 12, 2013.
Defendant subsequently moved to recuse the Bergen County
judiciary from further involvement in these matters. The trial
judge heard argument and denied the motions for reasons set
forth in an oral decision of February 18, 2014. An order
memorializing this ruling was entered on March 4, 2014.
Defendant moved for – and we granted – leave to appeal the
March 4, 2014 order.
In this interlocutory appeal, defendant argues that the
Bergen County judiciary must be recused because the State either
intends to rely upon or has otherwise injected into these
proceedings information that two Bergen County judges – the
presiding criminal judge and the bail judge – were "allegedly
named by defendant as potential murder victims." In these
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circumstances, defendant claims an air of impropriety will
permeate the proceedings if any Bergen judge were to preside in
this case.
We are mindful a decision to recuse resides in the trial
judge's sound discretion. See Panitch v. Panitch, 339 N.J.
Super. 63, 66 (App. Div. 2001). We have also said that it is
inappropriate for a judge to withdraw from a case "unless the
alleged cause of recusal is known by [the judge] to exist or is
shown to be true in fact." Hundred East Credit Corp. v. Eric
Schuster Corp., 212 N.J. Super. 350, 358 (App. Div.), certif.
denied, 107 N.J. 60 (1986). For these reasons, the State urges
our denial of relief.
We recognize defendant has not been charged with
threatening the presiding judge or the bail judge, and there
appears to be no actual conflict of interest that would require
recusal. But defendant is entitled to relief if "a fully
informed person might reasonably question the impartiality of a
judge[.]" In re Advisory Letter No. 7-11 of the Supreme Court
Advisory Comm., 213 N.J. 63, 78 (2013). After carefully
considering the circumstances, we conclude that a reasonable
person would harbor such doubts despite our own confidence that
the trial judge could fairly and impartially preside over this
matter.
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The State argues, in quoting from Illinois v. Allen, 397
U.S. 337, 346, 90 S. Ct. 1057, 1062, 25 L. Ed. 2d 353, 360-61
(1970), that we should affirm because to do otherwise would
"permit our courts to be bullied, insulted and humiliated and
their orderly process thwarted and obstructed by defendants
brought before them charged with crimes." A recusal based on an
appearance of impropriety, however, does not suggest weakness.
To the contrary, vigilance in ensuring the fairness of our
procedures in general, and as specifically applied in a
prosecution charging the most heinous of offenses, is one of the
Judiciary's great strengths.
The Judiciary's members are bound by "high standards of
conduct," Code of Judicial Conduct, Canon 1, which favor the
"avoid[ance] [of] all impropriety and appearance of
impropriety," id., comment on Canon 2. Although our courts must
be careful to prevent these rules from becoming a source for
manipulation by litigants, as to which there is no evidence
here,1 the rigorous application of these and the Code's other
1
We find insubstantial the suggestion that these alleged threats
may have been made in order to provide a ground for seeking
recusal. Threatening a judge for the mere purpose of seeking
disqualification would come at a heavy price considering the
seriousness of such a crime. We doubt our decision today would
encourage threats against members of the judiciary as a new form
of judge-shopping. See, e.g., United States v. Greenspan, 26
F.3d 1001, 1007 (10th Cir. 1994) (recognizing that "threats
(continued)
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regulations guarantee for society the most fair and impartial
judiciary conceivable. Consequently, even though we may assume
arguendo defendant was the author of the problem at hand, and
even though we are confident the trial judge could actually
preside fairly and impartially, we conclude that the appearance
of fairness in the future proceedings will be impaired so long
as a Bergen judge presides over the matter. Our ruling
essentially turns on what Chief Justice Rabner expressed for the
Court in DeNike v. Cupo, 196 N.J. 502, 506 (2008): "[t]he
Judiciary derives its authority from the State Constitution but
earns the public's confidence through acts of unquestioned
integrity." See also Advisory Letter No. 7-11, supra, 213 N.J.
at 70 (recognizing that "[c]ertainly, the public will lose faith
in our justice system if it believes that judges are hearing
cases despite conflicting interests that strain their ability to
be impartial"). We conclude that the preservation of the
appearance of fairness and impropriety – reasonably questioned
in these circumstances – compels the granting of relief.
The order under review is reversed. We remand to the
assignment judge for entry of an order either transferring the
(continued)
against judges are serious crimes, and any such ploy would
likely result in further ancillary prosecution against a
defendant in a way that may significantly multiply his or her
problems with the law").
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matter to another vicinage or arranging to have a judge from
another vicinage preside over the case. We do not retain
jurisdiction.
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