                NOT FOR PUBLICATION WITHOUT THE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, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99

L. Ed. 11, 16 (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, 339 N.J.

Super. 63, 66 (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., 212 N.J. Super. 350, 358 (App. Div.), certif.

denied, 107 N.J. 60 (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.,    213    N.J.    63,       78     (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, 397

U.S. 337, 346, 90 S. Ct. 1057, 1062, 25 L. Ed. 2d 353, 360-61

(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," id., 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, 26
F.3d 1001, 1007 (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, 196 N.J. 502, 506 (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, 213 N.J.

at 70 (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.




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