NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

EDWARD HOLLAND,

Defendant-Appellant.

_______________________________

Submitted February 2, 2017 - Decided 

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:

APPROVED FOR PUBLICATION

April 5, 2017

APPELLATE DIVISION

April 5, 2017
2 A-0315-15T4

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 
3 A-0315-15T4

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 
4 A-0315-15T4

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 
5 A-0315-15T4

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. 
6 A-0315-15T4

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 
7 A-0315-15T4

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 
8 A-0315-15T4

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 
9 A-0315-15T4

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 . . 
10 A-0315-15T4

. ." 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.]
11 A-0315-15T4

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 
12 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 
13 A-0315-15T4

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 disqualification 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).]
14 A-0315-15T4

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) 
15 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 
16 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. 
17 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 
18 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 
19 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, 
20 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 
21 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.