NOT FOR PUBLICATION WITHOUT THE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.

CALVIN PRESLEY, SHILYRE

COLLINS, and MADELINE SANCHEZ,

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

Before Judges Fisher, Espinosa and O'Connor.

APPROVED FOR PUBLICATION

July 17, 2014

APPELLATE DIVISION

July 17, 2014
2 A-4816-12T2

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 
3 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 
4 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.
5 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.
6 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.
7 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.
8 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.
9 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 
10 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 
11 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. CoxRivers, 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 
12 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).
13 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 
14 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 
15 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).
16 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-
17 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.
18 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 
19 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 deepseated 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). 
20 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.
21 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 
22 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 
23 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. 
24 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 
25 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). 
26 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).
27 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).
28 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 
29 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.
30 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 
31 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 
32 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 
33 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).
34 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 
35 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 
36 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.
37 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 
38 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.