                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-4816-12T2

STATE OF NEW JERSEY,

      Plaintiff-Respondent,

v.
                                    APPROVED FOR PUBLICATION
CALVIN PRESLEY, SHILYRE
                                         July 17, 2014
COLLINS, and MADELINE SANCHEZ,
                                       APPELLATE DIVISION
      Defendants-Appellants,

and

ELISE MINTZER and GARRET
LARDIERE 2ND,

      Defendants.

_______________________________

STATE OF NEW JERSEY,

      Plaintiff-Respondent,

v.

CALVIN PRESLEY, DARLENE OTT,
ANDREA DEKKER and CHRISTOPHER
CLARK,

      Defendants-Appellants.

________________________________________________________________

          Argued November 6, 2013 – Decided July 17, 2014

          Before Judges Fisher, Espinosa and O'Connor.
          On appeal from an interlocutory order of
          Superior Court of New Jersey, Law Division,
          Ocean County, Indictment Nos. 12-12-2405 and
          12-12-2484.

          John   P.  Reilly   argued       the       cause   for
          appellant Calvin Presley.

          Joseph E. Krakora, Public Defender, attorney
          for appellants Shilyre Collins and Darlene
          Ott, joins in the brief of appellant Calvin
          Presley.

          Michael H. Schreiber, attorney for appellants
          Andrea Dekker and Madeline Sanchez, joins in
          the brief of appellant Calvin Presley.

          Glenn D. Kassman, attorney for appellant
          Christopher Clark, joins in the brief of
          appellant Calvin Presley.

          Roberta     DiBiase,     Senior     Assistant
          Prosecutor, argued the cause for respondent
          (Joseph    D.    Coronato,    Ocean    County
          Prosecutor, attorney; Samuel J. Marzarella,
          Supervising    Assistant    Prosecutor,    of
          counsel; Ms. DiBiase and Nicholas Norcia,
          Assistant Prosecutor, on the brief).

    The opinion of the court was delivered by

ESPINOSA, J.A.D.

    In State v. McCann, 391 N.J. Super. 542 (App. Div. 2007),

we 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.

Defendants here ask us to apply that rule to invalidate search

warrants and orders, suppress all evidence obtained, and dismiss




                                   2                               A-4816-12T2
two    resulting     indictments    because          the    judge    who   issued   the

warrants prosecuted one of them as an assistant prosecutor.                         The

judge recused himself upon being alerted to the disqualifying

facts, and so, the question here is not one of recusal but of

remedy.       Specifically, we consider whether the application of a

bright-line      rule   is   appropriate        on    the    facts    of   this    case.

Those circumstances include the following: 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.     Because we conclude that McCann is distinguishable and

that    the    remedy   sought     by    defendants          will    not   serve    the

interests of the Code of Judicial Conduct, we affirm the order

denying defendants' motion for such relief.

                                         I.

       Like so many Superior Court Judges, the judge here served

as an assistant prosecutor before he was appointed to the bench




                                          3                                   A-4816-12T2
in 2007.1     During his decade-long service as a prosecutor, he

represented the State in four matters in which defendant Shilyre

Collins entered guilty pleas pursuant to plea agreements and was

sentenced.    There is no contention that he participated in the

prosecution    of   defendants      Calvin        Presley,     Madeline      Sanchez,

Elise Mintzer, Garret Lardiere 2nd, Darlene Ott, Andrea Dekker,

or   Christopher    Clark    (the   other        defendants)    as     an   assistant

prosecutor.

      In the months of March and April 2012, approximately seven

years after he was last involved in a prosecution of Collins,

the judge reviewed a series of applications and issued warrants

that authorized the installation and use of tracking devices,

the interception of wire and electronic communications, searches

of various locations, and the arrests of Collins and Presley

(collectively, the warrants).           This was not the first criminal

prosecution involving Collins in which the judge served in a

judicial capacity.

      More than one year earlier, in January 2011,                          the judge

arraigned    Collins   and    Presley       on    Indictment     No.    10-12-2195,

which charged them with third-degree drug possession offenses.


1
   At oral argument on the motion, Presley's counsel asserted
that eight of the judges sitting in Ocean County had previously
served as assistant prosecutors.




                                        4                                     A-4816-12T2
A    motion     to    suppress      evidence          was   filed        and   pending     until

resolved on November 15, 2011.                         The prosecutor dismissed the

indictment        against     Collins      after        her       co-defendant        exonerated

her.       At    no   time    during    the          year   that     this      indictment     was

pending before the judge did Collins ever remind the judge of

his prior prosecution of her or request his disqualification.

       In November 2011, the judge arraigned Presley and Collins

on another Indictment, No. 11-10-1923, which charged them with

drug   offenses       and    other     offenses.2             A    status      conference     was

scheduled, with motions,3 for April 18, 2012.

       The      warrants     that    are    the       subject       of    this   matter     were

issued by the judge during that period between the arraignment

on   the     second    Indictment,         No.       11-10-1923,         and    the    scheduled

April 2012 court date.               Approximately six months later, within

the context of that pending matter, the prosecutor sent a letter

to the judge and defense counsel, dated October 3, 2012, stating

2
   Presley was charged with three counts of third-degree drug
offenses, third-degree hindering apprehension, and fourth-degree
tampering with physical evidence. Collins was charged with two
counts of third-degree drug offenses and third-degree resisting
arrest.   A third defendant was also charged with attempting to
possess a controlled dangerous substance (CDS).
3
   The record does not disclose what motions                         were filed regarding
this indictment.     However, according to                           the motion judge's
opinion, a search warrant was issued by                              the same judge who
issued the warrants challenged here for a                            vehicle occupied by
Presley and Collins.




                                                 5                                      A-4816-12T2
the   judge   had   prosecuted    Collins    in   an   earlier   matter,

Indictment No. 04-04-668.4        At the next conference scheduled

regarding Indictment No. 11-10-1923, the judge advised counsel

he would not preside over any matters involving Collins, and the

cases were transferred to another judge (the motion judge).             It

is    undisputed    that   no    defendant   raised    the   issue      of

disqualification prior to the prosecutor's disclosure.

      In October 2012, Presley moved for an order declaring the

warrants issued by the judge invalid, suppressing all evidence

against him obtained through the execution of those warrants,

and dismissing the charges against him.           Collins later joined

Presley's motion.



4
   The State concedes that the judge represented the State in a
total of four matters. In addition to the one revealed by
Promis/Gavel in October 2012, those matters included the
following:
   On December 11, 2001, he executed a plea agreement in which
     Collins entered a guilty plea pursuant to a plea agreement
     to one count of Indictment No. 01-07-987 and to Indictment
     No. 01-11-1546, both of which charged her with third-degree
     possession of cocaine.
   On November 10, 2003, he executed a plea agreement in which
     Collins pled guilty to one count of Indictment 03-04-466,
     which was amended to third-degree conspiracy to possess
     cds.
   On July 15, 2005, he represented the State when Collins
     entered a guilty plea to a violation of probation (VOP)
     related to the sentences imposed on Indictment Nos. 01-07-
     987, 01-11-1546, and 03-04-466, and was sentenced on the
     VOP and on her guilty plea to one count of another
     Indictment, No. 04-04-668.



                                    6                            A-4816-12T2
       In December 2012, while the motion was pending, the grand

jury    returned      Indictment       No.       12-12-2405,     charging     Presley,

Collins, Sanchez, Mintzner, and Lardiere with drug conspiracy

and possession offenses.              A second indictment, in which Collins

was not a defendant, charged Presley, Ott, Dekker, and Clark

with conspiracy to commit robbery and robbery (Indictment No.

12-12-2484).

       At oral argument on the motion, no defendant contended that

the judge was biased or recalled his prosecution of Collins at

the    time   he   issued     the   orders.         To   the    contrary,    Presley's

counsel stated he had "no reason to believe that [the judge]

recalled or [was] biased," and further declared that whether the

judge     had       such     recollection          was     "entirely        completely

irrelevant."        Rather, he stated the issue called for an "ex post

facto analysis" in which the judge's failure to recuse himself

sua sponte should be evaluated "in hindsight," informed by the

facts   that     came   to    light    afterward.         Because    the    judge   had

"personally        prosecute[d]"       Collins,      Presley      argued    that    the

McCann bright-line rule applied, requiring the invalidation of

all the orders and warrants and the suppression of all evidence

obtained,       against      not    only     Collins      but    against     all    the

defendants in both indictments.




                                             7                                A-4816-12T2
    Collins's attorney argued that the warrants were legally

defective and invalid because they were not issued by a "neutral

and detached magistrate," see Johnson v. United States, 333 U.S.

10, 13-14, 68 S. Ct. 367, 369, 92 L. Ed. 436, 440 (1948), and

therefore, it was unnecessary to show actual bias by the judge.

He rejected the notion that Collins had any responsibility to

raise   the    issue    of   a   conflict     while   her   prior    matters   were

proceeding before the judge.             He maintained it was a defendant's

right to make "a strategic assessment" as to whether and when a

motion should be brought:

              Miss Collins [and I] had our own strategic[]
              reasons of why, although we may have known
              about this conflict before this case came
              along, had our strategic[] reasoning, I'm
              sure, that we're not going to reveal to
              anyone at this point why we didn't perhaps
              decide to raise this issue at that point.

    The motion judge denied defendants' motions in a written

decision.      We granted defendants leave to appeal.5

    Defendants          raise      the        following     issues      for     our

consideration:

              POINT I

              THE [] ORDERS/WARRANTS ISSUED IN FURTHERANCE
              OF THE STATE'S INVESTIGATION OF THE CRIMINAL

5
   Presley filed a motion for leave to appeal. Collins, Sanchez,
Clark, and Dekker later moved to join Presley's motion, and this
court granted the motion.    Collins, Sanchez, Clark, and Dekker
have chosen to rely on Presley's brief and argument.



                                          8                               A-4816-12T2
             MATTER INVOLVING COLLINS MUST BE DECLARED
             INVALID,   THE  EVIDENCE  OBTAINED  THEREBY
             SUPPRESSED, AND THE SUBJECT INDICTMENTS
             DISMISSED FOR HAVING VIOLATED THE "BRIGHT
             LINE RULE" ESTABLISHED BY THIS COURT IN THE
             CASE OF STATE V. MCCANN.

             POINT II

             THE COURT BELOW ERRED BY APPLICATION OF AN
             UNFOUNDED SUBJECTIVE ANALYSIS AND FAILING TO
             APPLY THE MCCANN OBJECTIVE "BRIGHT LINE
             RULE" FOR DISQUALIFICATION AND, THEREFORE,
             MUST BE REVERSED.

      Notably,     no     defendant     challenges       the    sufficiency     of    the

evidence presented in the affidavits to establish probable cause

for the issuance of the warrants.                   And no one argues that the

judge knew of the disqualifying prior prosecutions at the time

he   reviewed      the    affidavits     or    that      he    was   actually    biased

against any defendant.            Defendants argue that such questions are

irrelevant    and     that,    based    upon    a     "hindsight"       analysis,     the

grounds for the judge's recusal alone dictate the nullification

of all his actions, suppression of all evidence, and dismissal

of the charges.          We disagree.

                                         II.

      We   begin    by     reviewing    the    principles        that   required      the

judge's recusal here.

      The "overarching objective of the Code of Judicial Conduct

is   to    maintain      public    confidence       in    the    integrity      of    the

judiciary."      In re Advisory Letter No. 7-11 of the Supreme Court



                                          9                                     A-4816-12T2
Advisory    Comm.,          213       N.J.     63,    71       (2013).      Such      confidence

"depends     on        a    belief        in     the       impersonality         of     judicial

decisionmaking."            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).            Because         "'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)), we are as concerned with

how facts may reasonably be perceived by the public as we are

with actual cases of partiality.                          See DeNike v. Cupo, 196 N.J.

502, 514 (2008); see also State v. McCabe, 201 N.J. 34, 42-43

(2010); State v. Kettles, 345 N.J. Super. 466, 469-71 (App. Div.

2001), certif. denied, 171 N.J. 443 (2002).                               Thus, without any

proof of actual prejudice, "'the mere appearance of bias may

require disqualification.'"                    Panitch v. Panitch, 339 N.J. Super.

63, 67 (App. Div. 2001) (quoting State v. Marshall, 148 N.J. 89,

279, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d

88 (1997)).        "However, before the court may be disqualified on

the   ground      of       an    appearance          of    bias,    the    belief      that    the

proceedings        were          unfair      must         be    objectively      reasonable."

Marshall,    supra,             148   N.J.     at     279.        The    Supreme      Court    has

distilled      these            principles           to    this     question:         "Would     a

reasonable, fully informed person have doubts about the judge's




                                                 10                                     A-4816-12T2
impartiality?"           DeNike, supra, 196 N.J. at 517; see also In re

Advisory Letter No. 7-11, supra, 213 N.J. at 74-75.

       Pursuant to Rule 1:12-1(g), a judge must be disqualified

              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.

       An         administrative         directive         promulgated        by        the

Administrative Director of the Courts, dated September 19, 1983,

more particularly addresses the circumstances here:

              A judge should disqualify himself or herself
              from hearing a criminal matter involving a
              defendant who the judge, in his or her
              previous capacity, had personally prosecuted
              or defended, or had represented in a civil
              matter in the past.

       Because      he       had   previously    prosecuted      Collins,    the     judge

here        had     a        non-waivable       conflict     that     required          his

disqualification from matters involving her.                         Rivers v. Cox-

Rivers, 346 N.J. Super. 418, 421 (App. Div. 2002);                            Kettles,

supra, 345 N.J. Super. at 469-71; State v. Tucker, 264 N.J.

Super. 549, 555 (App. Div. 1993), certif. denied, 135 N.J. 468

(1994);      Code       of    Judicial   Conduct,        Canon   3(C),     (D).        When

presented with the disqualifying fact, he recused himself, and

the matters proceeded before another judge.                          From that point

forward, all issues regarding the admissibility or suppression

of     evidence,         motion      practice,     the     conduct    of     any      plea




                                            11                                    A-4816-12T2
negotiations      or    trial,   and    the    ultimate     disposition     of   the

charges against Collins and the other defendants rested in the

hands of a judge whose impartiality is unchallenged.

     The question here is, given these facts, what remedy 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, supra, 196 N.J. at 519 (emphasis added).

                                        III.

     As defendants' argument rests largely upon our decision in

McCann, we briefly review that case.                 After the defendant was

indicted on various drug charges, he moved to suppress evidence

seized pursuant to a search warrant issued by a municipal court

judge he considered his "family attorney" on the ground that the

judge was not a "neutral and detached magistrate" as required to

satisfy     the    warrant     requirement      of   the    federal   and    State

constitutions.6         McCann, supra, 391 N.J. Super. at 544-45.                The

defendant presented the following facts to support his argument:


6
   Under the Fourth Amendment to the United States Constitution,
"no Warrants shall issue, but upon probable cause, supported by
Oath or affirmation." See also N.J. Const. art. I, ¶ 7 ("[N]o
warrant shall issue except upon probable cause, supported by
oath or affirmation . . . ."); Johnson, supra, 333 U.S. at 13-
14, 68 S. Ct. at 369, 92 L. Ed. at 440; State v. Brown, 216 N.J.
508, 539 (2014).




                                         12                               A-4816-12T2
            [H]e had known the Municipal Court judge for
            twenty or thirty years, had consulted with
            him on various legal matters, and had been
            represented by him in one litigated case
            about   ten   years  earlier.      Defendant
            considered    the    judge    his    "family
            attorney[.]"

            . . . .

                 He had been represented by him.     His
            two sisters had been represented by him.
            His mother had been represented by him.   He
            had been to his house on at least 12
            occasions. He has sought his counsel on at
            least ten occasions. He had worked with him
            as part of his function with Winslow
            Township as an inspector.     And he was so
            comfortable with him that he was able to
            approach him three weeks before the issuance
            of this search warrant and request an OR
            bail for a friend.

            [Ibid.]

    The     motion     judge    granted      the    defendant's    suppression

motion.    We granted the State leave to appeal.

    In     our   decision,     we   reviewed   the    "neutral    and   detached

magistrate" requirement, cases from out of state that considered

whether the judge's prior acquaintance with the defendant was a

basis for invalidating a search warrant (State v. Mandravelis,

325 A.2d 794 (N.H. 1974), and United States v. Heffington, 952

F.2d 275 (9th Cir. 1991)), the governing Canons of the Code of

Judicial    Conduct,    New     Jersey      cases    that   interpreted     when

disqualification was required, and federal recusal practice.                   We

agreed with the motion judge that the municipal court judge



                                       13                               A-4816-12T2
should not have reviewed the warrant application.    However, we

concluded that suppression was not appropriate, stating,

         Here, defendant makes no assertion of bias
         on the part of the judge who signed the
         warrant and the facts concerning the prior
         relationship    suggest     none.       More
         importantly, as we have noted, no case until
         today has expressly condemned the practice
         in   question,  which   likely   occurs only
         infrequently. As a result, our ruling shall
         be purely prospective.

         In 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 invalidating the search warrant will be
         applicable.   The test is similar to that
         used in judging whether recusal is warranted
         under the principles discussed earlier.    We
         ask whether, if defendant were a party to
         the   warrant   application,  would   he   be
         entitled to recusal of the judge.     If so,
         then the warrant proceeding "is a nullity."

         [McCann, supra, 391 N.J. Super. at 554-55
         (citations omitted).]

                              IV.

    Based on no more than the conflict involving Collins, the

defendants who were not previously prosecuted by the judge argue

that McCann requires the invalidation of warrants, suppression

of evidence, and dismissal of indictments against all of them

because the McCann "bright-line rule" calls for "invalidating

the search warrant."   Id. at 555.   Defendants argue that, as a




                               14                          A-4816-12T2
result, the warrants were "invalid from their inception" and

therefore invalid as to all defendants.            We do not accept the

result urged as required by McCann or any other authority.

    Importantly,     McCann   and    the   cases   relied   upon   in    our

formulation of the bright-line rule each involved an individual

defendant who had a prior relationship with the judge that made

recusal necessary.     McCann, supra, 391 N.J. Super. at 550-55.7

We did not consider whether the circumstances giving rise to an

objectively reasonable belief that the judge could not qualify

as a "neutral and detached magistrate" based on his relationship

with one defendant necessarily invalidated a warrant admittedly

based on probable cause as to other defendants with whom he had

no disqualifying history.     We explained that the application of

the disqualification rule depended upon the question "whether,

if defendant were a party to the warrant application, would he

[or she] be entitled to recusal of the judge.           If so, then the

warrant proceeding 'is a nullity.'"           McCann, supra, 391 N.J.

Super. at 555 (quoting Rivers, supra, 346 N.J. Super. at 421).

Here, no defendant other than Collins claims a disqualifying

relationship with the judge.        As we defined the issue in McCann,

7
   See Deutsch, supra, 34 N.J. at 197; Rivers, supra, 346 N.J.
Super. at 420-21; Kettles, supra, 345 N.J. Super. at 467-69;
Tucker, supra, 264 N.J. Super. at 553-55; State v. Horton, 199
N.J. Super. 368, 374-77 (App. Div. 1985).




                                     15                            A-4816-12T2
none of them would be entitled to his disqualification at the

time he issued the warrants or the nullification of any action

he took in the case.

      Moreover, our discussion of Heffington, supra, 952 F.2d at

275, signals that we did not intend such a far-reaching result.

McCann supra, 391 N.J. Super. at 548-50.                        In Heffington, the

judge   who    issued     a     search      warrant    for      the   home    of    one

defendant's        stepfather    had       represented,    while      serving      as   a

federal defender, one of the co-defendants in another drug case

involving two of the other co-defendants.                       Heffington, supra,

952   F.2d    at    277-78.      The   defendant       challenged      the    warrant,

claiming the judge was not neutral and raised several theories

for   the    invalidation       of   the    warrant.      The    Court   of    Appeals

specifically considered defendant's argument that the judge's

prior representation of the co-defendant presented an appearance

of partiality and assumed such an appearance existed.                        The court

observed that "mere appearances of partiality" rarely rise "to

the level of constitutional error."                   Id. at 279.        Despite its

comment that the judge "may not have been the best possible

'neutral and detached' magistrate in Central California to issue

the search warrant," the court concluded that the appearance was

"not so 'extreme'" to result in a constitutional defect in the

warrant, which was clearly based on probable cause.                      Id. at 279-




                                            16                                A-4816-12T2
80.   Not only did we cite Heffington with approval, we observed,

"Professor LaFave notes his agreement with Heffington. . . ."8

McCann, supra, 391 N.J. Super. at 550 (citing 2 Wayne R. LaFave,

Search and Seizure: A Treatise on the Fourth Amendment § 4.2(b)

at 444 (3d ed. 1996)).

      In considering whether the other defendants may seek the

invalidation    of    the   warrants        based   on   the   judge's     prior

prosecution    of    Collins,    we   find      additional   guidance    in   the

principles    that   govern     whether     a   defendant    has   standing    to

challenge a search or seizure on constitutional grounds.                      Our

Supreme Court noted that the fact that "evidence implicates a

defendant in a crime is not, in and of itself, sufficient to

confer standing" to seek the suppression of evidence.                   State v.

Bruns, 172 N.J. 40, 58 (2002).

          There also must be at a minimum some
          contemporary    connection   between    the
          defendant and the place searched or the
          items seized.    Despite our broad standing
          rule, we acknowledge the soundness of the
          general principle that "suppression of the
          product of a Fourth Amendment violation can
          be successfully urged only by those whose

8
    We also noted Professor LaFave's approval of Mandravelis,
supra, the other out of state case we discussed in which the
judge's prior acquaintance with the defendant was considered and
rejected as a basis for invalidating a search warrant. McCann,
supra, 391 N.J. Super. at 548. The Mandravelis court found the
defendant failed to show that the issuing magistrate was
prejudiced   against  him   based  on  the   prior  association.
Mandravelis, supra, 325 A.2d at 795.



                                       17                               A-4816-12T2
             rights were violated by the search itself,
             not by those who are aggrieved solely by the
             introduction of damaging evidence."

             [Ibid. (emphasis added) (quoting Alderman v.
             United States, 394 U.S. 165, 171-72, 89 S.
             Ct. 961, 965, 22 L. Ed. 2d 176, 185-86
             (1969)).]

    We conclude that a parallel standard should be applicable

here.        Other    than         Collins,         no     defendant        had     any     prior

relationship        with       the       judge      that         required     his       recusal.

Defendants have cited no authority for the proposition that the

prosecution     of        a    co-defendant              would     require        the     judge's

disqualification as to them.                  In the absence of a constitutional

defect, the mere fact that evidence was obtained and charges

filed   as   the     result        of    warrants         issued    by    a   judge       with   a

disqualifying conflict as to one defendant is an insufficient

basis for the other defendants to seek the nullification of

orders entered by the judge and the additional relief sought.

                                               V.

    We turn to the argument that because the judge was required

to recuse himself based on the prior prosecution of Collins, the

bright-line rule we announced in McCann applies to render his

judicial     acts    as       to   her    a   nullity.            There     are    significant

factual distinctions between this case and the facts in McCann.

First, it was evident in McCann that the municipal court judge

was aware of the disqualifying association at the time he issued



                                               18                                       A-4816-12T2
the search warrant.      In contrast, as Presley's counsel conceded,

here there was "no reason to believe that [the judge] recalled"

the prior prosecution.          And, the defendant in McCann did not

delay raising the disqualifying facts as Collins did here for

strategic reasons.

                                       A.

    When     a   judge    has    knowledge       of    facts     that   require

disqualification    at   the    time   he   or   she   engages    in    judicial

conduct involving a party, there is a strong and reasonable

inference that the judge's neutrality will be affected by facts

outside the affidavit or proceeding.9                 It is clear that the

judge's knowledge was a foundational assumption for our decision

in McCann.       After recounting the facts presented to support

McCann's argument that the judge was not a neutral and detached

magistrate, we stated,

9
    Ironically, although the information the judge acquired by
presiding over two cases involving Collins for over one year is
likely to have equaled or exceeded that acquired in his
"personal" prosecution of her, that exposure does not provide a
basis for his disqualification.    See Liteky v. United States,
510 U.S. 540, 555, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474, 491
(1994) ("[O]pinions formed by the judge on the basis of facts
introduced or events occurring in the course of the current
proceedings, or of prior proceedings, do not constitute a basis
for a bias or partiality motion unless they display a deep-
seated favoritism or antagonism that would make fair judgment
impossible."); see also Tucker, supra, 264 N.J. Super. at 555
(recognizing that even in cases of "personal" prosecution, the
roles performed by a prosecutor entail varying degrees of
involvement with a defendant).



                                       19                               A-4816-12T2
          We assume, as we must, that he carefully
          reviewed the [] affidavit that revealed
          defendant's involvement and that he knew or
          should have known that this was his former
          client.    Under these circumstances, there
          was an appearance of impropriety under R.
          1:12-1[(g)].[10]

          [McCann, supra, 391 N.J. Super. at 554.]

     Further, in each of the cases we cited as examples where

the judge should have recused himself or herself based upon a

current   or   prior   relationship   with   a   litigant,11    the

disqualifying facts were known to the judge at the time the

recusal issue was raised.12

     In Deutsch, supra, 34 N.J. at 196-97, the defendant moved

to withdraw his non vult plea and for the judge to disqualify

himself before sentencing.    The Court found the motions should

have been granted because the judge's brother was an assistant

10
    Following our decision in McCann, the rule was redesignated
from R. 1:12-1(f) to R. 1:12-1(g).
11
   Horton, supra, 199 N.J. Super. at 368, does not diminish the
significance   of   a   judge's   knowledge   at    the   time the
disqualification   issue   is   raised  since    we   reversed the
conviction on other grounds. Id. at 377.
12
   Although we did not cite State v. Muraski, 6 N.J. Super. 36,
37-38 (App. Div. 1949) specifically for this proposition, it
stands as a classic example of how facts known to the judge
required recusal. We reversed the conviction of a defendant who
appeared before a magistrate for trial on charges of driving
while intoxicated. The magistrate had been crossing the street
when the defendant narrowly missed hitting him and assisted a
police officer in taking the defendant to a doctor for
examination thereafter.



                                20                        A-4816-12T2
prosecutor        and    a     law   partner      of    the    assistant    prosecutor

handling the prosecution against defendant.

      We reversed the defendant's convictions in Tucker, supra,

264 N.J. Super. at 555, because his motion for disqualification

should have been granted when defense counsel advised the judge

prior to trial that the judge had presented two cases involving

the defendant to the grand jury while the judge was an assistant

prosecutor.       Id. at 553.

      It    was    the    trial      judge   who    raised      the   disqualification

issue in Kettles, supra, 345 N.J. Super. at 467-71, when she

recognized the defendant before trial began.                          She informed the

defense attorney that she had presented a different case against

the defendant to the grand jury when she served as an assistant

prosecutor.        On defendant's petition for post-conviction relief,

we   held    that       the    trial     judge    should      have    recused   herself,

notwithstanding the defendant's stated waiver of any objection

to the judge presiding over his trial.                   Ibid.

      In Rivers, supra, 346 N.J. Super. at 419-20, the litigant

filed a motion after a plenary hearing in a matrimonial action,

seeking the trial judge's recusal based on bias and the fact he

had appeared as adverse counsel in the same matrimonial matter

some years earlier.              We concluded that the motion for recusal

should     have    been       granted,    that    the   order    entered    had     to   be




                                             21                                   A-4816-12T2
vacated    and   the    matter       remanded   for     a    new   hearing     before     a

different judge.         Although we announced a bright-line rule in

that    case,    the     rule        was   limited      to       circumstances      where

disqualification       was   already       required         by   Rule    1:12-1(c)     and

Canon 3(C)(1)(b):

            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
            the matter after an order has been entered.

            [Rivers, supra, 346                N.J.    Super.       at   421
            (emphasis added).]

       Our Supreme Court has also given significant weight to the

public's    perception          of     facts     known       contemporaneously          in

establishing precedent for mandatory disqualifications.                           See In

re Advisory Letter No. 7-11, supra, 213 N.J. at 66 (municipal

court judge disqualified from handling criminal matters arising

from municipality where his son served as a police officer);

McCabe, supra, 201 N.J. at 38 (holding part-time municipal court

judges must recuse themselves whenever the judge and a lawyer

for a party are adversaries in another open, unresolved case);

DeNike, supra, 196 N.J. at 519 (holding "judges may not discuss

or   negotiate    for    employment         with      any    parties     or    attorneys




                                           22                                    A-4816-12T2
involved    in   a    matter     in    which        the      judge     is    participating

personally and substantially").

     Defendants argue that whether the judge knew of the prior

prosecution at the time he issued the warrants is irrelevant

because we should conduct an analysis in "hindsight."                               The facts

as   ultimately      revealed     are        properly        considered        as    to     the

disqualification issue in light of our concern with even the

appearance of partiality.             However, it does not follow that we

should   view    the     facts   in     hindsight            in   determining         whether

evidence should be suppressed.                Our concern is not to punish but

to   identify     what     remedy       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, supra, 196 N.J. at 519.

     Even when we apply the exclusionary rule to impose a cost

for Fourth Amendment violations, we "consider the totality of

the information available to the officer at the time of the

conduct"    to   evaluate      whether       a    constitutional            defect    exists.

State v. Pitcher, 379 N.J. Super. 308, 315 (App. Div. 2005)

(emphasis    added)    (citing        State       v.   Pineiro,        181    N.J.    13,    21

(2004)),    certif.    denied,        186    N.J.      242    (2006).         "Information

acquired subsequently cannot be used to either bolster or defeat

the facts known at the time."               Id. at 315-16; see also 2 Wayne R.




                                             23                                      A-4816-12T2
LaFave, Search and Seizure: A Treatise on the Fourth Amendment §

3.2(d) at 57 (5th ed. 2012) ("It is axiomatic that hindsight may

not be employed . . . .").          Similarly, the facts known to the

judge at the time a warrant is issued should carry considerable

weight in assessing what remedy is required to restore public

confidence.

                                     B.

       The   implicit   premise   for     defendants'    argument      is   that

grounds for a judge's disqualification equate with the level of

partiality that amounts to the constitutional defect that exists

when the reviewing judicial officer cannot qualify as a "neutral

and detached magistrate."         See Johnson, supra, 333 U.S. at 13-

14, 68 S. Ct. at 369, 92 L. Ed. at 440.            Historical examples of

this   constitutional    defect   have    occurred   when      the   magistrate

acted in a law enforcement capacity rather than as a judicial

officer, e.g., Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 327,

99 S. Ct. 2319, 2325, 60 L. Ed. 2d 920, 929 (1979); Coolidge v.

New Hampshire, 403 U.S. 443, 453, 91 S. Ct. 2022, 2031, 29 L.

Ed. 2d 564, 575 (1971), and when the search warrant was issued

by an unsalaried justice of the peace who had a personal and

substantial     financial   interest      in   issuing   the    warrant     that

precluded the required neutrality, e.g., Connally v. Georgia,

429 U.S. 245, 251, 97 S. Ct. 546, 549, 50 L. Ed. 2d 444, 449




                                     24                                A-4816-12T2
(1977).      As     we    observed    in   McCann,           supra,   "none    of        these

decisions has any bearing on the issue before us."                             391 N.J.

Super. at 548.

      To be sure, there is some overlap between the principles

applicable        to      disqualification             and      the    constitutional

requirement that warrants be issued by a "neutral and detached

magistrate."        Both analyses require the judicial officer to be

impartial.        But,     the   grounds        for    disqualification            are    far

broader.     To serve the objective to "maintain public confidence

in the integrity of the judiciary," In re Advisory Letter No. 7-

11, supra, 213 N.J. at 71, we are equally concerned with the

appearance     of       partiality,    even       in     the     absence      of    actual

prejudice to a litigant.          Panitch, supra, 339 N.J. Super. at 66-

67.

      Generally, the exclusionary rule applies only to evidence

obtained in violation of the Fourth Amendment to the United

States Constitution or Article I, Paragraph 7, of the New Jersey

Constitution.          See State v. Evers, 175 N.J. 355, 378-80 (2003).

"The overarching purpose of the [exclusionary] rule is to deter

the police from engaging in constitutional violations by denying

the prosecution any profit from illicitly-obtained evidence."

State v. Williams, 192 N.J. 1, 14 (2007); see also State v.

Harris, 211 N.J. 566, 590 (2012).




                                           25                                      A-4816-12T2
     "[M]ost matters relating to judicial disqualification [do]

not rise to a constitutional level."                 Aetna Life Ins. Co. v.

Lavoie, 475 U.S. 813, 820-21, 106 S. Ct. 1580, 1584-85, 89 L.

Ed. 2d 823, 831-32 (1986) (quoting FTC v. Cement Inst., 333 U.S.

683, 702, 68 S. Ct. 793, 804, 92 L. Ed. 1010, 1035 (1948)); see

also Heffington, supra, 952 F.2d at 279; McCann, supra, 391 N.J.

Super.    at   549-50.13         Rather,    issues    involving      a    judge's

qualifications to hear a case are ordinarily resolved "by common

law, statute, or the professional standards of the bench and

bar."    Bracy v. Gramley, 520 U.S. 899, 904-05, 117 S. Ct. 1793,

1797, 138 L. Ed. 2d 97, 104 (1997); see also Tumey v. Ohio, 273

U.S. 510, 523, 47 S. Ct. 437, 441, 71 L. Ed. 749, 754 (1927)

("[Not all] questions of judicial qualification . . . involve

constitutional       validity.      Thus    matters   of     kinship,    personal

bias, state policy, remoteness of interest, would seem generally

to be matters merely of legislative discretion.").                   As we have

discussed,     the   judge's     disqualification     here    was   mandated    by


13
    In McCann, we described the test for application of the
"bright-line rule" as "similar to that used in judging whether
recusal is warranted," but we also stated that the analysis was
subject to the principles discussed in our opinion, 391 N.J.
Super. at 555, which included our extensive review of Heffington
and its recognition "of civil cases demonstrating 'a measure of
caution on the part of the courts before concluding that mere
appearances of partiality have, in fact, risen to the level of
constitutional error.'" Id. at 549 (quoting Heffington, supra,
952 F.2d at 279).



                                       26                                A-4816-12T2
Rule 1:12-1(g), Canon 3(C) of the Code of Judicial Conduct, and

the administrative directive, not by a constitutional violation.

       Yet, claiming no bias or knowledge by the judge that would

sully his neutrality, defendants contend this one factor -- the

appearance of partiality -- is sufficient to invalidate all the

judge's acts.       In effect, they urge an exclusionary rule to be

administered    based   solely     upon    an   "appearance     of    partiality"

sufficient to require disqualification under the Rule, Canon,

and    administrative    directive,       unfettered      by    any    thoughtful

analysis.

       Our concern that "justice must satisfy the appearance of

justice," Deutsch, supra, 34 N.J. 206, does not elevate the

appearance     of    partiality,     perceived       in   retrospect,      to     a

dispositive factor that requires the suppression of evidence.14

Even    when   we   suppress     evidence       to   preserve    constitutional

principles, we recognize that "the exclusionary rule exacts a


14
    In fact, the Supreme Court has found that disqualification
may not be required (even by the administrative directive issued
September 19, 1983) when a PCR judge's role in the prior
prosecution of an unrelated indictment was marginal, remote, and
not realized by the judge.       The Court therefore concluded
defendant had not established that reason existed that "might
preclude a fair and unbiased hearing and judgment, or which
might reasonably lead counsel or the parties to believe so," in
violation of Rule 1:12-1.   State v. Harris, 181 N.J. 391, 511
(2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed.
2d 898 (2005).




                                      27                                 A-4816-12T2
high price on society by depriving the jury or judge of reliable

evidence that may point the way to the truth."                   Williams, supra,

192 N.J. at 14.        "When the truth is suppressed and the criminal

is   set    free,    the    pain    of    suppression    is    felt,    not    by    the

inanimate     State    or    by    some    penitent     policeman,      but    by    the

offender's next victims for whose protection we hold office."

State v. Bisaccia, 58 N.J. 586, 590 (1971).                     Accordingly, "the

exclusionary rule is not applied indiscriminately."                           State v.

Gioe, 401 N.J. Super. 331, 339 (App. Div. 2008), certif. denied,

199 N.J. 129 (2009).

             Suppression of evidence . . . has always
             been our last resort, not our first impulse.
             The exclusionary rule generates substantial
             social    costs,   which  sometimes    include
             setting the guilty free and the dangerous at
             large.     We have therefore been cautious
             against expanding it, and have repeatedly
             emphasized that the rule's costly toll upon
             truth-seeking and law enforcement objectives
             presents a high obstacle for those urging
             its    application.      We   have   rejected
             indiscriminate application of the rule, and
             have held it to be applicable only where its
             remedial    objectives   are   thought    most
             efficaciously served--that is, where its
             deterrence benefits outweigh its substantial
             social costs.

             [Ibid. (quoting Hudson v. Michigan, 547 U.S.
             586, 591, 126 S. Ct. 2159, 2163, 165 L. Ed.
             2d 56, 64 (2006).]

      Our     Supreme       Court        has    similarly      stated     that       the

exclusionary        rule   should    be    "applied     to    those    circumstances




                                           28                                  A-4816-12T2
where its remedial objectives can best be achieved," Williams,

supra, 192 N.J. at 15, and has acknowledged, "Sometimes, the

cost of excluding evidence is not justified by the rule and its

purposes."       State v. Herrerra, 211 N.J. 308, 330 (2012); see

also State v. Badessa, 185 N.J. 303, 311 (2005); State v. Hai

Kim    Nguyen,   419    N.J.    Super.    413,   428   (App.     Div.),     certif.

denied,    208   N.J.    339    (2011).        Therefore,      our   courts    have

declined to apply the exclusionary rule when doing so

            would advance none of its purposes --
            deterrence, judicial integrity, and imposing
            a cost on illicit behavior -- and would
            disserve the process of doing justice in
            this state by preventing the introduction of
            reliable and relevant evidence in a criminal
            prosecution.   Use of that evidence in this
            state will not offend the integrity of our
            judicial process.

            [Evers, supra, 175 N.J. at 380; see also
            Harris, supra, 211 N.J. at 590; Gioe, supra,
            401 N.J. Super. at 341-44.]

       It is evident that the suppression of the evidence obtained

through    the   warrants      here    would   serve   none    of    the   remedial

purposes of the exclusionary rule.               There is no allegation of

police misconduct or a claim that the warrants were issued on

less than probable cause.             Defendants concede that the judge was

not biased in discharging his judicial duty.                  In short, there is

no    constitutional    imperative       for   the   suppression      of   evidence

here.




                                         29                                A-4816-12T2
                                            VI.

       We therefore consider whether nullifying all the judicial

action here is required to restore public confidence in the

integrity of the judicial process.

       The nature and extent of how the proceedings have been

tainted by the judge's participation clearly inform the nature

and extent of the remedy required.                       When a judge engaged in

negotiations for employment with a law firm appearing before

him,     the     Supreme     Court      concluded        that          "a     knowledgeable,

objective        observer"      might        reasonably          perceive           that     the

negotiations        could       have        "infected            all        that      occurred

beforehand."       DeNike, supra, 196 N.J. at 519.                          Accordingly, the

Court determined that "a full retrial [was] 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."                                   Ibid.; see

also Kettles, supra, 345 N.J. Super. at 471; Rivers, supra, 346

N.J. Super. at 423.

       In    contrast,     in   a     case        we   decided         after       McCann,    we

concluded that a retrial was not required despite a municipal

court judge's conflict.               State v. Taimanglo, 403 N.J. Super.

112,   122-23     (App.    Div.     2008),        certif.     denied,         197    N.J.    477

(2009).        The defendant raised for the first time at sentencing




                                             30                                       A-4816-12T2
that approximately eighteen years earlier, his business rented a

hot dog cart to the municipal court judge and had not been paid.

The judge recalled the hot dog cart but not the defendant and

determined    he    had   to   recuse     himself   from    sentencing      the

defendant.    After sentencing, defendant was convicted in a trial

de novo in the Law Division.            We rejected defendant's argument

on appeal that he was entitled to a new trial based on the

municipal court judge's conflict.         Judge Stern stated,

         The issue giving rise to his decision arose
         after his findings of guilt were rendered.
         At   the  municipal   court  trial,   neither
         defendant nor the judge recalled the hotdog
         cart incident of approximately eighteen
         years earlier, and defendant raised no issue
         with respect thereto before the findings
         were rendered. In light of these facts, we
         decline to hold that the findings of the Law
         Division which we review after a trial de
         novo are somehow tainted because the record
         was made before the municipal court judge.

         [Ibid. (emphasis added); see also State v.
         Bisaccia, 319 N.J. Super. 1, 21 (App. Div.
         1999).]

    Recognizing that the action taken to ensure one litigant's

case was heard without the appearance of partiality may come at

some cost to the litigant who is unaffected by the conflict, we

have encouraged litigants to take appropriate steps to limit

expense upon retrial, DeNike, supra, 196 N.J. at 519, and noted

that economic sanctions could be imposed upon a litigant whose

concealment    of    disqualifying       facts   resulted    in   a    wasted



                                     31                               A-4816-12T2
litigation effort by her adversary.                  Rivers, supra, 346 N.J.

Super. at 422-23.        However, mindful that our ultimate objective

is to maintain public confidence in the judicial process, we

cannot ignore the impact upon public confidence if the case of a

blameless litigant is effectively eviscerated in the interest of

sparing another litigant from a mere appearance of partiality.

      That consequence has added resonance when, as here, it was

the     unconflicted      party,        the    State,    that    brought      the

disqualifying facts to light while Collins withheld those facts

from the judge for a period of one year while she was appearing

before him in other criminal matters for admittedly strategic

reasons.      Although we agree that her failure to raise the issue

earlier should not alone deprive Collins of a remedy, we reject

her     contention    that      she    had    no   obligation   to   bring    the

disqualifying facts to the court's attention until it suited her

strategic purposes.          In Rivers, we explicitly stated, "[T]he

obligation     to    disclose    the    disqualifying    involvement    rest[s]

equally upon each party who had knowledge of the involvement."

346 N.J. Super. at 423.                To accept Collins's argument would

create the potential for manipulation of the judicial process

that would undermine public confidence.

      We therefore conclude that under the circumstances of this

case,     a   determination       as    to    whether   warrants     should    be




                                         32                             A-4816-12T2
invalidated,        evidence      suppressed,       and    indictments          dismissed

should not be controlled by a "bright-line rule."                             Because the

remedy      sought     has      the   practical         effect        of    applying       the

exclusionary rule to the evidence obtained here, the facts here

call for a consideration of the totality of the circumstances as

would    apply       to   challenges        to     searches         and      seizures       on

constitutional        grounds.        The   following      non-exclusive            list    of

factors are relevant to our analysis here:

      (1) the nature and extent of the judge's prior role as a

prosecutor or attorney and the amount of time that passed since

the disqualifying conduct;

      (2)     the    facts   known     to   the    judge       at     the    time   of     the

judicial act that is challenged;

      (3)     the reasonableness of efforts made by the State and

the   judge    to    identify     a   conflict      before       judicial      action       is

taken;

      (4)     the evidence of actual partiality on the part of the

judge,   including        any    evidence        that    his     or    her    prior      role

affected the decision made;15

      (5) the length of delay in raising the issue and any reason

for such delay;


15
    Cf. Murray v. United States, 487 U.S. 533, 542, 108 S. Ct.
2529, 2536, 101 L. Ed. 2d 472, 484 (1988).



                                            33                                      A-4816-12T2
       (6) prejudice to the adverse party caused by the delay in

raising the disqualification issue;

       (7) sufficiency of support for the warrant or order issued

by the judge.

       No one factor is dispositive but, similar to the analysis

in Fourth Amendment challenges to searches and seizures, our

analysis is informed by whether the nullification of orders and

suppression of evidence will serve the objective of the Code of

Judicial Conduct "to maintain public confidence in the integrity

of the judiciary."         In re Advisory Letter No. 7-11, supra, 213

N.J. at 71.

       There is no contention here that, despite his "personal

prosecution" of Collins some seven years earlier, the judge was

aware of or influenced by the disqualifying facts at the time he

issued the warrants here.         Because there is also no contention

that   there    was   insufficient   probable    cause    to   support     the

issuance of the warrants, we need not describe the supporting

evidence   in    detail.       However,   by   way   of   example    of    the

sufficiency of the affidavits, we briefly describe the affidavit

for the first warrant, which authorized the installation of a

tracking    device    on     Collins's    automobile.      The      affidavit

contained descriptions of two controlled purchases of cocaine

from Presley and Collins during the week of March 11, 2012, and




                                     34                              A-4816-12T2
stated that Collins drove the red Acura registered to her to the

prearranged site for the first controlled buy.                       The affidavit

also     described    information          obtained       from     four     different

confidential informants (CIs) with prior reliability, three of

whom had purchased cocaine from Collins in the past.

       Collins was arraigned by the judge on a prior criminal

matter    in    January    2011,    well    over    a    year    before     the    first

warrant was issued.          A suppression motion was filed and not

resolved until November 2011.              At that time, the judge arraigned

Collins on another indictment.              Motions were filed in that case

as well, and the motion hearing was scheduled for April 2012.

It was within the month before the scheduled motion date for the

second matter to proceed before the judge that the warrants were

issued.

       It is unclear from the record exactly how long Collins was

aware of the disqualifying facts while her matters were pending

before    the   judge.      We     appreciate      the   fact    that   the   contact

between    a    defendant    and    a   prosecutor        or    appointed     counsel,

particularly in a high-volume court proceeding such as the days

on     which    multiple    defendants          enter    guilty     pleas     or     are

sentenced, may not translate into vivid recollections of the

identities      of   the    participants.               Although    court     records

regarding such appearances may be helpful as reminders, they may




                                           35                                 A-4816-12T2
not reliably and instantly provide complete information about

all   such   proceedings.     That   was   the   case   here.     When    the

assistant prosecutor alerted the court and defense counsel to

the judge's prior prosecution of Collins, only one prosecution

was identified, and it was only upon further review that three

other indictments were identified.16

      Collins admits that she knew of the disqualifying facts,

elected to withhold them, and claimed she was entitled to do so

because she had no responsibility to disclose the facts.                 But,

as we directed in Rivers, supra, the integrity of the process

requires     that   all     participants     share      equally   in      the

responsibility to raise disqualification issues known to them.

346 N.J. Super. at 422-23.      By withholding the information here,

Collins placed an unsuspecting judge in an untenable position

where every judicial act was at risk of nullification.                   This

alone posed a risk to the integrity of the judicial process.               We

therefore reject Collins's contention that she was entitled to

withhold her knowledge of the judge's prior prosecution of her

until such time as it served her strategic purposes.

16
    As this case demonstrates, neither human memory nor
computerized records are infallible in detecting a conflict of
the sort that existed here.      We suggest that the Criminal
Practice Committee consider whether a procedure might be
instituted to alert the court and parties of conflicts based on
prior representation or prosecution before significant judicial
action is undertaken.



                                     36                            A-4816-12T2
      If her argument were accepted, Collins's silence would also

result in significant prejudice to the State.                As we have noted,

she appeared before the judge for arraignment on two separate

matters    and    litigated     a   suppression   motion     before     him,   all

within the year before the warrants were issued.                   If she had

raised the disqualifying facts at any time during that period,

the   judge     would    have   recused   himself    prior    to   issuing     the

warrants, and the matter would have proceeded before another

judge without any threat to the continued prosecution.

      Our analysis of these factors leads us to conclude that a

nullification of the judge's orders here would not serve the

purpose    of    the    disqualification     rules   and   Code    of   Judicial

Conduct.        We do not retreat from the principle that when the

prior prosecutions were raised, the judge was required to recuse

himself.      However, viewing the facts from the perspective of a

"fully informed" member of the public, there is little reason to

lose confidence in the integrity of the judicial process when it

is undisputed that the judge was unaware of the seven-year-old

disqualifying facts and acted in an unbiased matter.                      We are

also convinced that the same "fully informed" member of the

public would be dismayed by the effect on the integrity of the

judicial process if a defendant were permitted to manipulate the

outcomes of prosecutions not tainted by constitutional defect by




                                        37                               A-4816-12T2
having the discretion to invoke dispositive claims of judicial

disqualification at will.

    The order denying defendants' motions is affirmed in all

respects.




                              38                       A-4816-12T2
