State of New Jersey v. Edward Holland ( 2017 )


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  •                    NOT FOR PUBLICATION WITHOUT THE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,
    APPROVED FOR PUBLICATION
    Plaintiff-Respondent,
    April 5, 2017
    v.
    APPELLATE DIVISION
    EDWARD HOLLAND,
    Defendant-Appellant.
    _______________________________
    Submitted February 2, 2017 - Decided April 5, 2017
    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:
    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
    2                               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
    3                                      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
    4                              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.
    5                            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
    6                                  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
    7                                  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
    8                                      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 . .
    9                                       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.]
    10                                 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
    11                                    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
    12                           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 disquali-
    fication    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).]
    13                           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)
    14                                 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
    15                                   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
    .
    16                              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
    17                                     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
    18                                   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,
    19                            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
    20                                        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.
    21                                     A-0315-15T4