NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

AAKASH A. DALAL,

Defendant-Appellant.

_______________________________________________

Argued November 12, 2014 – Decided

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 

APPROVED FOR PUBLICATION

November 21, 2014

APPELLATE DIVISION

November 21, 2014
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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 ComplaintSummons with criminal mischief, a disorderly-persons offense, 

N.J.S.A. 2C:17-3(a)(1), based on an allegation that he spraypainted 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
3 A-3715-13T3

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 
4 A-3715-13T3

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; firstdegree 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 
5 A-3715-13T3

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 
6 A-3715-13T3

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.
7 A-3715-13T3

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 

 

1We 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)
8 A-3715-13T3

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").
9 A-3715-13T3

matter to another vicinage or arranging to have a judge from 

another vicinage preside over the case. We do not retain 

jurisdiction.