NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3715-13T3

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION Plaintiff-Respondent, November 21, 2014

v. APPELLATE DIVISION

AAKASH A. DALAL,

Defendant-Appellant. _______________________________________________

Argued November 12, 2014 – Decided November 21, 2014

Before Judges Fisher, Nugent and Manahan.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 13-03-00374 and 13-08-01118.

Brian J. Neary argued the cause for appellant (Law Offices Brian J. Neary, attorneys; Mr. Neary, on the brief).

Annmarie Cozzi, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney for respondent; Ms. Cozzi, of counsel and on the brief; Elizabeth R. Rebein, Assistant Prosecutor, on the brief).

The opinion of the court was delivered by

FISHER, P.J.A.D.

We granted leave to appeal to examine an order which denied

defendant's motion to recuse the Bergen County judiciary from presiding over this matter. The problem at hand arose when the

State advised it would offer evidence at trial that defendant

threatened the lives of two Bergen judges. Not because we

possess any doubt about the trial judge's ability to fairly and

impartially preside over this matter, but because, in the final

analysis, "justice must satisfy the appearance of justice,"

Offutt v. United States,

,

,

(1954), we reverse and remand to the assignment

judge for entry of an appropriate order.

On February 29, 2012, defendant was charged in a Complaint-

Summons with criminal mischief, a disorderly-persons offense,

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

painted anti-Semitic graffiti on a Hackensack synagogue. The

next day defendant was charged in a Complaint-Warrant with:

first-degree aggravated arson of a Rutherford synagogue,

N.J.S.A. 2C:17-1(a); first-degree bias intimidation, N.J.S.A.

2C:16-1(a); and first-degree conspiracy to commit aggravated

arson, N.J.S.A. 2C:5-2(a)(2) and N.J.S.A. 2C:17-1(a). He was

also charged that same day, by way of another Complaint-Warrant,

with fourth-degree bias intimidation. The day after that,

defendant was charged in another Complaint-Summons with the

disorderly persons offense of criminal mischief at a Maywood

synagogue, and fourth-degree bias intimidation, and in another

2 A-3715-13T3 Complaint-Warrant with two counts of first-degree conspiracy to

commit aggravated arson.

On March 2, 2012, bail was set by the criminal presiding

judge (hereafter "presiding judge") at $2,500,000. Defendant's

motion for a bail reduction was denied by another judge

(hereafter "bail judge") on April 20, 2012. Defendant moved for

leave to appeal, and we summarily reduced the amount of bail to

$1,000,000; we also remanded for consideration of other

appropriate bail conditions.

Before the remand proceedings could occur, defendant was

charged in another Complaint-Warrant with: first-degree

conspiracy to murder a Bergen County Assistant Prosecutor,

N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:11-3; third-degree

conspiracy to possess a firearm for an unlawful purpose,

N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:39-4; and third-degree

terroristic threats, N.J.S.A. 2C:12-3(b). The presiding judge

set bail at $3,000,000 without a ten percent option.

On November 14, 2012, defendant moved before the assignment

judge for a change of venue and the recusal of the Bergen County

Prosecutor's Office.

On March 1, 2013, the grand jury returned an indictment

charging defendant with: fourth-degree bias intimidation at a

Maywood synagogue; fourth-degree criminal mischief at a

3 A-3715-13T3 Hackensack synagogue; three counts of first-degree conspiracy to

commit arson; two counts of first-degree aggravated arson; three

counts of first-degree bias intimidation; three counts of

second-degree possession of a destructive device, a Molotov

cocktail, for an unlawful purpose; three counts of third-degree

unlawful possession of a destructive device; first-degree

attempted arson; third-degree hindering apprehension; first-

degree terrorism, N.J.S.A. 2C:38-2(b)(1); and second-degree

terrorism, N.J.S.A. 2C:38-4.

Defendant moved for a reduction of bail. Another judge,

who later entered the order now in question, set a consolidated

bail on all charges of $4,000,000. Defendant again moved for

leave to appeal. We denied this application on July 30, 2013.

A week later, the grand jury returned an indictment

charging defendant with: first-degree conspiracy to murder a

Bergen County Assistant Prosecutor (the same prosecutor referred

to in the earlier charges); second-degree conspiracy to possess

an assault firearm, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:39-

5(f); and third-degree terroristic threats, N.J.S.A. 2C:12-3(a).

Defendant promptly moved to dismiss both indictments; he

also sought to recuse the presiding judge from further

involvement. In responding to the latter, the State

acknowledged there was "a significant reason" for recusal

4 A-3715-13T3 because the State intended "to introduce into evidence at the

trial in this case evidence that defendant has listed [the

presiding judge] as a target." The presiding judge transferred

control over the proceedings to another judge (hereafter "the

trial judge"), thereby viewing the motion to recuse as moot.

At approximately the same time, defendant continued to

press his motion to change venue and expanded on the application

by referring to statements made by the Bergen County Prosecutor

during a news conference. The trial judge denied defendant's

motion by order entered on November 12, 2013.

Defendant subsequently moved to recuse the Bergen County

judiciary from further involvement in these matters. The trial

judge heard argument and denied the motions for reasons set

forth in an oral decision of February 18, 2014. An order

memorializing this ruling was entered on March 4, 2014.

Defendant moved for – and we granted – leave to appeal the

March 4, 2014 order.

In this interlocutory appeal, defendant argues that the

Bergen County judiciary must be recused because the State either

intends to rely upon or has otherwise injected into these

proceedings information that two Bergen County judges – the

presiding criminal judge and the bail judge – were "allegedly

named by defendant as potential murder victims." In these

5 A-3715-13T3 circumstances, defendant claims an air of impropriety will

permeate the proceedings if any Bergen judge were to preside in

this case.

We are mindful a decision to recuse resides in the trial

judge's sound discretion. See Panitch v. Panitch,

(App. Div. 2001). We have also said that it is

inappropriate for a judge to withdraw from a case "unless the

alleged cause of recusal is known by [the judge] to exist or is

shown to be true in fact." Hundred East Credit Corp. v. Eric

Schuster Corp.,

(App. Div.), certif.

denied,

(1986). For these reasons, the State urges

our denial of relief.

We recognize defendant has not been charged with

threatening the presiding judge or the bail judge, and there

appears to be no actual conflict of interest that would require

recusal. But defendant is entitled to relief if "a fully

informed person might reasonably question the impartiality of a

judge[.]" In re Advisory Letter No. 7-11 of the Supreme Court

Advisory Comm.,

(2013). After carefully

considering the circumstances, we conclude that a reasonable

person would harbor such doubts despite our own confidence that

the trial judge could fairly and impartially preside over this

matter.

6 A-3715-13T3 The State argues, in quoting from Illinois v. Allen,

,

,

(1970), that we should affirm because to do otherwise would

"permit our courts to be bullied, insulted and humiliated and

their orderly process thwarted and obstructed by defendants

brought before them charged with crimes." A recusal based on an

appearance of impropriety, however, does not suggest weakness.

To the contrary, vigilance in ensuring the fairness of our

procedures in general, and as specifically applied in a

prosecution charging the most heinous of offenses, is one of the

Judiciary's great strengths.

The Judiciary's members are bound by "high standards of

conduct," Code of Judicial Conduct, Canon 1, which favor the

"avoid[ance] [of] all impropriety and appearance of

impropriety,"

comment on Canon 2. Although our courts must

be careful to prevent these rules from becoming a source for

manipulation by litigants, as to which there is no evidence

here,1 the rigorous application of these and the Code's other

1 We find insubstantial the suggestion that these alleged threats may have been made in order to provide a ground for seeking recusal. Threatening a judge for the mere purpose of seeking disqualification would come at a heavy price considering the seriousness of such a crime. We doubt our decision today would encourage threats against members of the judiciary as a new form of judge-shopping. See, e.g., United States v. Greenspan,

(10th Cir. 1994) (recognizing that "threats (continued)

7 A-3715-13T3 regulations guarantee for society the most fair and impartial

judiciary conceivable. Consequently, even though we may assume

arguendo defendant was the author of the problem at hand, and

even though we are confident the trial judge could actually

preside fairly and impartially, we conclude that the appearance

of fairness in the future proceedings will be impaired so long

as a Bergen judge presides over the matter. Our ruling

essentially turns on what Chief Justice Rabner expressed for the

Court in DeNike v. Cupo,

(2008): "[t]he

Judiciary derives its authority from the State Constitution but

earns the public's confidence through acts of unquestioned

integrity." See also Advisory Letter No. 7-11, supra,

(recognizing that "[c]ertainly, the public will lose faith

in our justice system if it believes that judges are hearing

cases despite conflicting interests that strain their ability to

be impartial"). We conclude that the preservation of the

appearance of fairness and impropriety – reasonably questioned

in these circumstances – compels the granting of relief.

The order under review is reversed. We remand to the

assignment judge for entry of an order either transferring the

(continued) against judges are serious crimes, and any such ploy would likely result in further ancillary prosecution against a defendant in a way that may significantly multiply his or her problems with the law").

8 A-3715-13T3 matter to another vicinage or arranging to have a judge from

another vicinage preside over the case. We do not retain

jurisdiction.

9 A-3715-13T3