Kenneth Vercammen is a Middlesex County trial attorney who has published 130 articles in national and New Jersey publications on Criminal Law and litigation topics. Appointments can be scheduled at 732-572-0500. He is author of the ABA's book "Criminal Law Forms".
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Thursday, May 15, 2014

NJ judge must recuse if they have cases with defense attorney State v. Terence McCabe

NJ judge must recuse if they have cases with defense attorney
State v. Terence McCabe

  (A-88-08)

Decided January 25, 2010

RABNER, C.J., writing for a unanimous Court.
The issue in this appeal is whether a part-time municipal court judge must recuse himself when the judge and the defense attorney are adversaries in an unrelated, pending probate case that has been dormant for two years.
In 2008, defendant Terence McCabe was charged with failure to turn over a controlled dangerous substance, a disorderly persons offense. The matter was referred to the municipal court in Morris Township. McCabe hired Alan S. Albin, Esquire, to represent him. After the first court appearance, Albin realized that he and the municipal judge, the Honorable Robert J. Nish, J.M.C., were opposing counsel in an open, unrelated probate case that was pending in the Superior Court. Judge Nish, in his capacity as a private attorney, represented a claimant against an estate who challenged the validity of a will. Albin represented the executrix of the estate, who was defending the will. The probate case had earlier been dismissed for failure to respond to discovery requests. The complaint was reinstated on August 18, 2006, on an application by attorney Nish, after his client provided answers to interrogatories. The order entered that day was the last activity in the probate case.
In September 2008, McCabe filed a motion to recuse Judge Nish. He argued that recusal was necessary to avoid an actual or potential conflict of interest and an appearance of impropriety. At oral argument, Albin stressed that although the probate matter had been inactive for two years, it was still a pending, active case. Judge Nish denied the motion, finding that the dormant probate case caused no prejudice to McCabe and did not create an apparent conflict of interest. Judge Nish gave McCabe time to seek leave to appeal his decision.
In November 2008, the Superior Court denied McCabe's motion for leave to file an interlocutory appeal without hearing oral argument. In a statement of reasons, the court cited to Rule 1:12-1(f) and concluded: "That counsel for the defendant and the judge represented adverse parties in a Probate matter without more is not the basis for a reasonable belief that a `fair and unbiased hearing and judgment' would not occur."
Albin then filed a motion to dismiss the probate case for lack of prosecution. The unopposed motion was granted, and the case was dismissed without prejudice on December 4, 2008. In the municipal court matter, McCabe next sought leave to file an interlocutory appeal with the Appellate Division. The motion was denied in January 2009. The Supreme Court granted McCabe's motion for leave to appeal and ordered a stay of the municipal court proceedings pending the outcome of this appeal. 198 N.J. 471 (2009).
HELD: Part-time municipal court judges must recuse themselves whenever the judge and a lawyer for a party are adversaries in some other open, unresolved matter.
1. There are 528 municipal courts throughout the State. Presiding over those courts are 318 part-time and 22 full-time judges. In contrast to full-time judges, part-time municipal court judges can engage in the private practice of law, subject to certain restrictions. Municipal courts consider violations of traffic laws, violations of ordinances, disorderly persons offenses, and various other proceedings. For the 2008-09 court year, the municipal court system handled approximately 6.3 million cases. For millions of New Jerseyans each year, municipal court judges are the face of the Judiciary. Ensuring both conflict-free, fair hearings and the appearance of impartiality in municipal courts is vital to our system of justice.  
2. As the Court stated in DeNike v. Cupo, 196 N.J. 502 (2008), Canon 1 of the Code of Judicial Conduct articulates the bedrock principle that "an independent and honorable judiciary is indispensable to justice in our society." Pursuant to Canon 2, judges must avoid all impropriety and appearance of impropriety. They must avoid acting in a biased way or in a manner that may be perceived as partial. To demand any less would invite questions about the impartiality of the justice system and threaten the integrity of our judicial process.  
3. Two additional rules address disqualification. Canon 3(C)(1) provides that a judge "should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." Rule 1:12-1(f) instructs judges not to sit in a matter 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." Thus, it is not necessary to prove actual prejudice. The mere appearance of bias may require disqualification. In DeNike, those principles guided the Court to the following standard for recusal: "Would a reasonable, fully informed person have doubts about the judge's impartiality?" ( )
4. As an initial matter, this case is not moot. The after-the-fact dismissal of the probate case cannot cure an appearance problem that might have existed at the time the recusal motion was heard.  
5. The Court reviews de novo whether the proper legal standard was applied to the motion for disqualification. In this case, the municipal court judge mistakenly focused on whether McCabe had suffered any prejudice. The Superior Court addressed Rule 1:12-1(f), but did not speak to the possible appearance of impropriety.  
6. There is no evidence of bias, unfairness, or animosity between the municipal judge and defense counsel in this case. The core problem relates to the probate case, which was still pending when the McCabe matter reached Judge Nish's courtroom. Although there had been no activity in that case for two years, Judge Nish and Mr. Albin were still adversaries in an open matter -- they were not former adversaries in a prior matter. Allowing a judge to oversee a case in which the defendant's attorney is also the judge's adversary in another pending matter is to invite reasonable doubts about the judge's partiality. That, in turn, raises reasonable questions in the minds of litigants and the public about the fairness of the proceedings and the overall integrity of the process. For those reasons, disqualification is required in this case.  
7. To offer guidance to municipal judges and litigants and to help ensure the confidence of the public in the judicial system, the Court adopts a bright-line rule: Part-time municipal court judges must recuse themselves whenever the judge and a lawyer for a party are adversaries in some other open, unresolved matter.  
8. When the lawyer and judge were former adversaries in a closed case, that fact alone will not compel recusal. In those situations, judges should evaluate the factors in Rule 1:12-1 and other relevant considerations, including any history of animosity between counsel and how recently they were adversaries.  


Chief Justice Rabner wrote for the court:
“Judges are "to act at all times in a manner that promotes public confidence," id. Canon 2(A), and "must avoid all impropriety and appearance of impropriety," id. commentary on Canon 2 (emphasis added). Indeed, as this Court recognized nearly a half century ago, "`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)). That standard requires judges to "refrain . . . from sitting in any causes where their objectivity and impartiality may fairly be brought into question." Ibid. In other words, judges must avoid acting in a biased way or in a manner that may be perceived as partial. To demand any less would invite questions about the impartiality of the justice system and thereby "threaten[] the integrity of our judicial process." State v. Tucker, 264 N.J. Super. 549, 554 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994).

[DeNike, supra, 196 N.J. at 514-15.]

Two additional rules focus directly on the subject of disqualification. Canon 3(C)(1) of the Code of Judicial Conduct provides that "[a] judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned." Likewise, Rule 1:12-1(f) instructs judges not to sit in any matter "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."2
Our rules, therefore, are designed to address actual conflicts and bias as well as the appearance of impropriety. In evaluating McCabe's recusal motion, the municipal court judge looked for proof of prejudice to McCabe. Yet "it is not necessary to prove actual prejudice on the part of the court[;] . . . the mere appearance of bias may require disqualification. . . . [T]he belief that the proceedings were unfair must be objectively reasonable." State v. Marshall, 148 N.J. 89, 279 (citing R. 1:12-1(f)), cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed.2d 88 (1997).
In DeNike, supra, those principles guided us to the following standard to evaluate requests for recusal: "Would a reasonable, fully informed person have doubts about the judge's impartiality?" 196 N.J. at 517. That same test, of course, also applies to municipal court judges. See, e.g., State v. McCann, 391 N.J. Super. 542, 554 (App. Div. 2007) (requiring recusal for appearance of impropriety when municipal court judge issued search warrant for residence of defendant he once represented); State v. Perez, 356 N.J. Super. 527, 532 (App. Div. 2003) (requiring recusal when municipal court judge made comments that "reasonable person would take as reflecting bias" against minority group).”

       The Supreme Court also held in McCabe
“When recusal is necessary, the municipal court case can be transferred to another judge in the same or a nearby municipal court. R. 7:8-2(b). Because we focus on conflicts posed by pending matters, that approach should not impose a heavy burden on the Judiciary, as the State suggests. Whatever the burden, though, it must be met, because the cost to the Judiciary's reputation otherwise would be greater.”





Tuesday, May 6, 2014

First offenders dismissal program for prostitution charges

3:12-2. Notice of Alibi; Failure to Furnish

3:12-2. Notice of Alibi; Failure to Furnish

  • (a) Alibi. If a defendant intends to rely in any way on an alibi, within 10 days after a written demand by the prosecutor the defendant shall furnish a signed alibi, stating the specific place or places at which the defendant claims to have been at the time of the alleged offense and the names and addresses of the witnesses upon whom the defendant intends to rely to establish such alibi. Within 10 days after receipt of such alibi, the prosecutor shall, on written demand, furnish the defendant or defendant's attorney with the names and addresses of the witnesses upon whom the State intends to rely to establish defendant's presence at the scene of the alleged offense. The trial court may order such amendment or amplification as the interest of justice requires.
  • (b) Failure to Furnish. If the information required in paragraph (a) is not furnished, the court may refuse to allow the party in default to present witnesses at trial as to defendant's absence from or presence at the scene of the alleged offense, or make such other order or grant such adjournment, or delay during trial, as the interest of justice requires.

2C:12-1 Assault in connection with Domestic Violence complaints

2C:12-1  Assault.

 
2C:12-1  Assault.  a.  Simple assault.  A person is guilty of assault if he:

(1)Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or

(2)Negligently causes bodily injury to another with a deadly weapon; or

(3)Attempts by physical menace to put another in fear of imminent serious bodily injury.

Simple assault is a disorderly persons offense unless committed in a fight or scuffle entered into by mutual consent, in which case it is a petty disorderly persons offense.

b.Aggravated assault.  A person is guilty of aggravated assault if he:

(1)Attempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury; or

(2)Attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

(3)Recklessly causes bodily injury to another with a deadly weapon; or

(4)Knowingly under circumstances manifesting extreme indifference to the value of human life points a firearm, as defined in section 2C:39-1f., at or in the direction of another, whether or not the actor believes it to be loaded; or

(5)Commits a simple assault as defined in subsection a. (1), (2) or (3) of this section upon:

(a)Any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer; or

(b)Any paid or volunteer fireman acting in the performance of his duties while in uniform or otherwise clearly identifiable as being engaged in the performance of the duties of a fireman; or

(c)Any person engaged in emergency first-aid or medical services acting in the performance of his duties while in uniform or otherwise clearly identifiable as being engaged in the performance of emergency first-aid or medical services; or

(d)Any school board member, school administrator, teacher, school bus driver or other employee of a public or nonpublic school or school board while clearly identifiable as being engaged in the performance of his duties or because of his status as a member or employee of a public or nonpublic school or school board or any school bus driver employed by an operator under contract to a public or nonpublic school or school board while clearly identifiable as being engaged in the performance of his duties or because of his status as a school bus driver; or

(e)Any employee of the Division of Child Protection and Permanency while clearly identifiable as being engaged in the performance of his duties or because of his status as an employee of the division; or

(f)Any justice of the Supreme Court, judge of the Superior Court, judge of the Tax Court or municipal judge while clearly identifiable as being engaged in the performance of judicial duties or because of his status as a member of the judiciary; or

(g)Any operator of a motorbus or the operator's supervisor or any employee of a rail passenger service while clearly identifiable as being engaged in the performance of his duties or because of his status as an operator of a motorbus or as the operator's supervisor or as an employee of a rail passenger service; or

(h)Any Department of Corrections employee, county corrections officer, juvenile corrections officer, State juvenile facility employee, juvenile detention staff member, juvenile detention officer, probation officer or any sheriff, undersheriff, or sheriff's officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority; or

(i)Any employee, including any person employed under contract, of a utility company as defined in section 2 of P.L.1971, c.224 (C.2A:42-86) or a cable television company subject to the provisions of the "Cable Television Act," P.L.1972, c.186 (C.48:5A-1 et seq.) while clearly identifiable as being engaged in the performance of his duties in regard to connecting, disconnecting or repairing or attempting to connect, disconnect or repair any gas, electric or water utility, or cable television or telecommunication service; or

(j)Any health care worker employed by a licensed health care facility to provide direct patient care, any health care professional licensed or otherwise authorized pursuant to Title 26 or Title 45 of the Revised Statutes to practice a health care profession, except a direct care worker at a State or county psychiatric hospital or State developmental center or veterans' memorial home, while clearly identifiable as being engaged in the duties of providing direct patient care or practicing the health care profession; or

(k)Any direct care worker at a State or county psychiatric hospital or State developmental center or veterans' memorial home, while clearly identifiable as being engaged in the duties of providing direct patient care or practicing the health care profession, provided that the actor is not a patient or resident at the facility who is classified by the facility as having a mental illness or developmental disability; or

(6)Causes bodily injury to another person while fleeing or attempting to elude a law enforcement officer in violation of subsection b. of N.J.S.2C:29-2 or while operating a motor vehicle in violation of subsection c. of N.J.S.2C:20-10.  Notwithstanding any other provision of law to the contrary, a person shall be strictly liable for a violation of this subsection upon proof of a violation of subsection b. of N.J.S.2C:29-2 or while operating a motor vehicle in violation of subsection c. of N.J.S.2C:20-10 which resulted in bodily injury to another person; or

(7)Attempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury; or

(8)Causes bodily injury by knowingly or purposely starting a fire or causing an explosion in violation of N.J.S.2C:17-1 which results in bodily injury to any emergency services personnel involved in fire suppression activities, rendering emergency medical services resulting from the fire or explosion or rescue operations, or rendering any necessary assistance at the scene of the fire or explosion, including any bodily injury sustained while responding to the scene of a reported fire or explosion.  For purposes of this subsection, "emergency services personnel" shall include, but not be limited to, any paid or volunteer fireman, any person engaged in emergency first-aid or medical services and any law enforcement officer.  Notwithstanding any other provision of law to the contrary, a person shall be strictly liable for a violation of this paragraph upon proof of a violation of N.J.S.2C:17-1 which resulted in bodily injury to any emergency services personnel; or

(9)Knowingly, under circumstances manifesting extreme indifference to the value of human life, points or displays a firearm, as defined in subsection f. of N.J.S.2C:39-1, at or in the direction of a law enforcement officer; or

(10) Knowingly points, displays or uses an imitation firearm, as defined in subsection v. of N.J.S.2C:39-1, at or in the direction of a law enforcement officer with the purpose to intimidate, threaten or attempt to put the officer in fear of bodily injury or for any unlawful purpose; or

(11) Uses or activates a laser sighting system or device, or a system or device which, in the manner used, would cause a reasonable person to believe that it is a laser sighting system or device, against a law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority.  As used in this paragraph, "laser sighting system or device" means any system or device that is integrated with or affixed to a firearm and emits a laser light beam that is used to assist in the sight alignment or aiming of the firearm.

Aggravated assault under subsections b. (1) and b. (6) is a crime of the second degree; under subsections b. (2), b. (7), b. (9) and b. (10) is a crime of the third degree; under subsections b. (3) and b. (4) is a crime of the fourth degree; and under subsection b. (5) is a crime of the third degree if the victim suffers bodily injury, otherwise it is a crime of the fourth degree. Aggravated assault under subsection b.(8) is a crime of the third degree if the victim suffers bodily injury; if the victim suffers significant bodily injury or serious bodily injury it is a crime of the second degree. Aggravated assault under subsection b. (11) is a crime of the third degree.

c. (1) A person is guilty of assault by auto or vessel when the person drives a vehicle or vessel recklessly and causes either serious bodily injury or bodily injury to another.  Assault by auto or vessel is a crime of the fourth degree if serious bodily injury results and is a disorderly persons offense if bodily injury results. Proof that the defendant was operating a hand-held wireless telephone while driving a motor vehicle in violation of section 1 of P.L.2003, c.310 (C.39:4-97.3) may give rise to an inference that the defendant was driving recklessly.

(2)Assault by auto or vessel is a crime of the third degree if the person drives the vehicle while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and serious bodily injury results and is a crime of the fourth degree if the person drives the vehicle while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) and bodily injury results.

(3)Assault by auto or vessel is a crime of the second degree if serious bodily injury results from the defendant operating the auto or vessel while in violation of R.S.39:4-50 or section 2 of P.L.1981, c.512 (C.39:4-50.4a) while:

(a)on any school property used for school purposes which is owned by or leased to any elementary or secondary school or school board, or within 1,000 feet of such school property;

(b)driving through a school crossing as defined in R.S.39:1-1 if the municipality, by ordinance or resolution, has designated the school crossing as such; or

(c)driving through a school crossing as defined in R.S.39:1-1 knowing that juveniles are present if the municipality has not designated the school crossing as such by ordinance or resolution.

Assault by auto or vessel is a crime of the third degree if bodily injury results from the defendant operating the auto or vessel in violation of this paragraph.

A map or true copy of a map depicting the location and boundaries of the area on or within 1,000 feet of any property used for school purposes which is owned by or leased to any elementary or secondary school or school board produced pursuant to section 1 of P.L.1987, c.101 (C.2C:35-7) may be used in a prosecution under subparagraph (a) of paragraph (3) of this subsection.

It shall be no defense to a prosecution for a violation of subparagraph (a) or (b) of paragraph (3) of this subsection that the defendant was unaware that the prohibited conduct took place while on or within 1,000 feet of any school property or while driving through a school crossing.  Nor shall it be a defense to a prosecution under subparagraph (a) or (b) of paragraph (3) of this subsection that no juveniles were present on the school property or crossing zone at the time of the offense or that the school was not in session.

(4)Assault by auto or vessel is a crime of the third degree if the person purposely drives a vehicle in an aggressive manner directed at another vehicle and serious bodily injury results and is a crime of the fourth degree if the person purposely drives a vehicle in an aggressive manner directed at another vehicle and bodily injury results.  For purposes of this paragraph, "driving a vehicle in an aggressive manner" shall include, but is not limited to, unexpectedly altering the speed of the vehicle, making improper or erratic traffic lane changes, disregarding traffic control devices, failing to yield the right of way, or following another vehicle too closely.

As used in this section, "vessel" means a means of conveyance for travel on water and propelled otherwise than by muscular power.

d.A person who is employed by a facility as defined in section 2 of P.L.1977, c.239 (C.52:27G-2) who commits a simple assault as defined in paragraph (1) or (2) of subsection a. of this section upon an institutionalized elderly person as defined in section 2 of P.L.1977, c.239 (C.52:27G-2) is guilty of a crime of the fourth degree.

e.(Deleted by amendment, P.L.2001, c.443).

f.A person who commits a simple assault as defined in paragraph (1), (2) or (3) of subsection a. of this section in the presence of a child under 16 years of age at a school or community sponsored youth sports event is guilty of a crime of the fourth degree.  The defendant shall be strictly liable upon proof that the offense occurred, in fact, in the presence of a child under 16 years of age.  It shall not be a defense that the defendant did not know that the child was present or reasonably believed that the child was 16 years of age or older.  The provisions of this subsection shall not be construed to create any liability on the part of a participant in a youth sports event or to abrogate any immunity or defense available to a participant in a youth sports event.  As used in this act, "school or community sponsored youth sports event" means a competition, practice or instructional event involving one or more interscholastic sports teams or youth sports teams organized pursuant to a nonprofit or similar charter or which are member teams in a youth league organized by or affiliated with a county or municipal recreation department and shall not include collegiate, semi-professional or professional sporting events.