Judge must Recuse from case if involved as prosecutor. State v. Presley

Judge must Recuse from case if involved as prosecutor. State v. Presley __ N.J. Super. __ (App. Div. 2014) A-4816-12T2

     In State v. McCann, 391 N.J. Super. 542 (App. Div. 2007), the court 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. Upon being advised he had prosecuted one of the defendants when he was an assistant prosecutor, the trial judge recused himself. So, the question here is not one of recusal but of remedy. Defendants here ask us to apply McCann to the following facts: 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. The court concludes that McCann is distinguishable; the remedy sought by defendants will not serve the interests of the Code of Judicial Conduct; and the appropriate remedy should be determined by what 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 v. Cupo, 196 N.J. 502, 519 (2008).