                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-0315-15T4

STATE OF NEW JERSEY,
                                         APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                              April 5, 2017
v.
                                           APPELLATE DIVISION

EDWARD HOLLAND,

     Defendant-Appellant.
_______________________________

          Submitted February 2, 2017 - Decided April 5, 2017

          Before Judges Lihotz, Hoffman and O'Connor.

          On appeal from Superior Court of New Jersey,
          Law Division, Cumberland County, Indictment
          No. 10-11-0667.

          Joseph E. Krakora, Public Defender, attorney
          for appellant (Rasheedah Terry, Designated
          Counsel, on the brief).

          Jennifer    Webb-McRae,   Cumberland   County
          Prosecutor,     attorney    for    respondent
          (Danielle R. Pennino, Assistant Prosecutor,
          of counsel and on the brief).

     The opinion of the court was delivered by

LIHOTZ, P.J.A.D.

     Defendant Edward Holland appeals from a July 23, 2015 Law

Division order denying his petition for post-conviction relief

(PCR).   On appeal, defendant argues:
            THE    PCR  COURT'S    RULING    THAT   DENIED
            DEFENDANT'S   MOTION    FOR    POST-CONVICTION
            RELIEF MUST BE REVERSED BECAUSE THERE WAS A
            SUBSTANTIAL     DENIAL      OF     DEFENDANT'S
            CONSTITUTIONAL RIGHTS IN THE PROCEEDINGS
            BELOW.

            A.    Trial Counsel's Failure to Seek the
                  Recusal of the Trial Judge Violated
                  Defendant's Sixth Amendment Right to
                  the Effective Assistance of Counsel.

            B.    [The trial judge's] Failure to Recuse
                  Himself   Constitutes  a   Substantial
                  Denial of Defendant's Right to a Fair
                  and Unbiased Trial.

       Following our review, we conclude the interests of justice

require a judge to avoid all inference of impropriety.                 Although

this    record    does   not   definitively        show   the   trial      judge

remembered defendant was his former client many years ago, there

is certainty of his prior representation of defendant on more

than one criminal matter.           Consequently, we are constrained to

reverse the denial of PCR, vacate the judgment of conviction,

and remand the matter for retrial.

                                        I.

       Defendant was arrested, charged, and convicted by a jury of

third-degree     possession    of   a   controlled    dangerous   substance,

heroin, with the intent to distribute, N.J.S.A. 2C:35-5(b)(3),

and third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1).

The    State's   evidence   included        defendant's   admissions    to    the

arresting officer, defendant's custodial statement, and heroin



                                        2                               A-0315-15T4
seized pursuant to a warrant.                    Following the verdict, the State

moved to impose a mandatory extended term sentence, N.J.S.A.

2C:43-6(f), which was granted.                        After merger, the trial judge

sentenced defendant to a custodial term of seven years, subject

to a three-year period of parole ineligibility.

      Defendant appealed from his conviction and sentence.                                     He

challenged the State's summation and argued his sentence was

excessive.         In    an    unpublished            opinion,     this    court     rejected

defendant's arguments and affirmed the judgment of conviction

and the imposed sentence.                State v. Holland, No. A-2007-12 (App.

Div. Aug. 19, 2014).

      Defendant         timely      filed    a       petition    for     PCR.      He    argued

counsel provided ineffective assistance because counsel failed

to   seek    the    judge's         recusal,         knowing     the     trial     judge      had

represented     defendant           in   the     past.          During    the    evidentiary

hearing, defendant's counsel testified defendant recognized the

trial judge, explaining the judge prior to taking the bench, had

represented defendant several times in connection with criminal

charges,      including          drug       offenses.             Counsel        additionally

testified "there was an [in-chambers] conference" regarding the

issue.      Counsel asserted the trial judge "expressed that he had

known    [defendant]"         and    had    a    positive       opinion     of    him.        She

acknowledged she did not move for recusal, stating defendant




                                                 3                                      A-0315-15T4
believed   it   was   beneficial     to   allow   his   former    counsel   to

preside over his case.

    Defendant testified, relating the nature of the prior legal

representation by the trial judge, asserting there were separate

matters in both the Superior and municipal courts.                 Defendant

refuted his attorney's testimony suggesting he was pleased to

learn his former lawyer was assigned to preside over his trial,

stating, "I was bothered by it."

    The     State        presented    no     witnesses,      but     offered

certifications    from    the   assistant   prosecutors     who    tried    the

case, stating they were told by defense counsel the judge had

previously represented the defendant and believed the judge was

advised of the prior representation.              Each of the assistant

prosecutors certified: "It was my understanding . . . defendant

was adamant that he wanted to proceed with [his former attorney]

as the trial judge."

    In a written opinion, the PCR judge confirmed defendant was

previously represented by the trial judge in a 1993 criminal

charge and a 1995 violation of probation.                He found defense

counsel and the prosecutors knew of the prior representation

provided by the trial judge.          Further, he found defendant was

pleased by this fact and characterized the decisions not to seek




                                      4                              A-0315-15T4
recusal or "place anything on the record" as "a strategic trial

strategy."   The judge then found:

              Despite the testimony to the contrary
         by [defense counsel], this [c]ourt cannot
         and does not find, by a preponderance of the
         evidence, that [the trial judge] had any
         recollection      of      having      represented
         [defendant] on a prior occasion.             This
         finding is based upon several factors.
         First, there is no record in the case at bar
         that reflects that knowledge. Clearly, [the
         trial judge] would have and should have
         addressed the issue on the record if it was
         brought to his attention.           Second, the
         representation occurred 17 years prior to
         the   start   of   trial    and   it   would   be
         objectively reasonable and understandable
         that [the trial judge] simply did not
         remember [defendant] because of the passage
         of time.    Third, there was nothing in the
         record in front of him, such as testimony,
         documents or the pre-sentence report that
         would have brought his attention to the fact
         that he represented . . . defendant 17 years
         prior   [sic].       Finally,    while   [defense
         counsel] recalls a conference in chambers
         regarding that issue, specifics of that
         conference have not been provided to the
         [c]ourt, such as when and under what
         circumstances    that    conference     occurred.
         This is not to imply that [defense counsel]
         was not credible, but rather, her memory of
         the events might be clouded by the passage
         of time.      Further[,] the certifications
         provided by the Assistant Prosecutors fail
         to allege with any level of specificity how
         and under what circumstances [the trial
         judge] was aware of his prior representation
         of . . . defendant.           It seems highly
         unlikely and improbable that four attorneys,
         the [j]udge and . . . defendant would fail
         to place anything on the record regarding
         the prior representation between the trial,
         sentencing and appeal.



                                5                            A-0315-15T4
      Relying on these findings, the PCR judge stated he could

not "second-guess counsel's strategic decisions with the benefit

of hindsight."         Therefore, he concluded counsel's performance

was not deficient.          He also found defendant's right to a fair

trial was not compromised as there was overwhelming evidence of

guilt, the trial results were reliable, and defendant suffered

no prejudice.      He denied defendant's petition for relief.                    This

appeal ensued.

                                        II.

      "Post-conviction       relief    is     New   Jersey's     analogue   to    the

federal writ of habeas corpus."              State v. Goodwin, 173 N.J. 583,

593   (2002)     (quoting    State     v.     Preciose,    129    N.J.   451,     459

(1992)).     The process affords an adjudged criminal defendant a

"last   chance    to   challenge       the    'fairness    and    reliability      of

verdict.'"       State v. Nash, 212 N.J. 518, 540 (2013) (quoting

State v. Feaster, 184 N.J. 235, 249 (2005)); see also R. 3:22-1.

"Post-conviction       relief     is   neither      a   substitute    for    direct

appeal,    R.    3:22-3,    nor   an    opportunity       to   relitigate      cases

already decided on the merits, R. 3:22-5."                Preciose, supra, 129

N.J. at 459; see also State v. Echols, 199 N.J. 344, 357 (2009).

            It is well-settled that to set aside a
            conviction based upon a claim of ineffective
            assistance of counsel, a petitioner must
            prove, by a preponderance of the evidence,
            that (1) counsel performed deficiently, and



                                         6                                  A-0315-15T4
         made errors so serious that he or she was
         not functioning as counsel guaranteed by the
         Sixth Amendment; and (2) defendant suffered
         prejudice as a result.         Strickland v.
         Washington, 466 U.S. 668, 687, 694, 104 S.
         Ct. 2052, 2064, 2068, 80 L. Ed. 2d 674, 693,
         698 (1984); [] Preciose, [supra,] 129 N.J.
         [at] 459 (reciting preponderance of the
         evidence standard of proof) . . . .

         [State v. L.A., 433 N.J. Super. 1, 13 (App.
         Div. 2013).]

Strickland's two-prong test was adopted by New Jersey in State

v. Fritz, 105 N.J. 42, 58 (1987).

    In our review of a denial of a PCR petition following an

evidentiary   hearing,    we    afford     deference    to    the   PCR   judge's

factual findings, as long as they are "supported by sufficient

credible evidence in the record."           Nash, supra, 212 N.J. at 540;

see also State v. Elders, 192 N.J. 224, 244 (2007) ("A trial

court's findings should be disturbed only if they are so clearly

mistaken 'that the interests of justice demand intervention and

correction.'"   (quoting       State   v.    Johnson,    42    N.J.   146,      162

(1964))). However, we do not defer to legal conclusions, which

we review de novo.       Nash, supra, 212 N.J. at 540-41; see State

v. Gregory, 220 N.J. 413, 419-20 (2015).

    Generally, four reasons afford a basis to grant PCR: (1)

substantial denial of a state or federal constitutional right;

(2) lack of jurisdiction by the sentencing court; (3) imposition

of an excessive or unlawful sentence; or (4) any other ground



                                       7                                  A-0315-15T4
available "as a basis for collateral attack upon a conviction."

Preciose, supra, 129 N.J. at 459; R. 3:22-2.                           When raising a

claim of ineffective assistance of counsel, a defendant "must do

more than make bald assertions that he [or she] was denied the

effective assistance of counsel.                    He [or she] must allege facts

sufficient         to        demonstrate       counsel's         alleged      substandard

performance."           State v. Cummings, 321 N.J. Super. 154, 170 (App.

Div.), certif. denied, 162 N.J. 199 (1999).                          The burden rests

with defendant to prove such a violation "by a preponderance of

the credible evidence."              Preciose, supra, 129 N.J. at 459.

                                            III.

       The issue presented in this appeal, whether counsel should

have     insisted        on    the     trial       judge's    recusal,      is    unusual.

N.J.S.A. 2A:15-50 permits a party to move for the recusal of a

judge,     prior        to    commencement         of   trial.       Defendant         argues

counsel's failure to seek recusal deprived him of a fair trial.

The    State   rejects          this      position,      suggesting        the    decision

represents     a    "valid       trial    strategy,"         which   cannot      be    second

guessed.

       Before the PCR court, defendant's trial counsel testified

defendant      wanted          to    be    tried        by    his    former       counsel.

Unsurprisingly, defendant offered a contrary view.                               Though we

recognize defendant's claim of ineffective assistance of trial




                                               8                                      A-0315-15T4
counsel is not one ordinarily brought on direct appeal, State v.

Hess, 207 N.J. 123, 145 (2011), defendant's underlying theory,

that   the    trial   judge      should       have       recused       himself,    certainly

could have been raised on direct appeal.                        See R. 3:22-4 (barring

PCR claims which could have been brought on direct appeal).                                   In

many respects, defendant's argument is precisely the sort of

"sandbagging"       the   Strickland          standard      is     designed       to   defeat.

Cf. Wainwright v. Sykes, 433 U.S. 72, 103 n.5, 97 S. Ct. 2497,

2515   n.5,    53   L.    Ed.     2d    594,       618    n.5    (1977)       (Brennan,      J.,

concurring)     (defining        sandbagging         in    this       context     as   when     a

defendant voluntarily withholds a claim from the trial court,

only to raise it on appeal).

       Despite this likely possibility, we are convinced we need

not    evaluate     counsel's          actions       at    this        time     because      the

paramount issue is the effect of a trial judge presiding over

the criminal trial of his former criminal client.                              Following our

review, we reject the assumption by the PCR judge, who denied

PCR    by    speculating         the    trial       judge        did     not    recall       his

representation.           This    is    not    an    issue       on     which    supposition

suffices.     "The question raises concerns about public confidence

in the integrity and impartiality of our system of justice . . .

[b]ecause judges must avoid not only actual conflicts but also

the appearance of impropriety to promote the public's trust . .




                                               9                                       A-0315-15T4
. ."     State v. McCabe, 201 N.J. 34, 38 (2010).              There can be no

compromise of the "bedrock principle articulated in Canon 1 of

the    Code    of   Judicial    Conduct     that   '[a]n    independent        and

honorable judiciary is indispensable to justice our society.'"

Id. at 42-43 (quoting DeNike v. Cupo, 196 N.J. 502, 514 (2008)).

       Equally important to our system of justice is the need to

safeguard a criminal defendant's right to a fair and unbiased

trial.      The unequivocal evidence is, in the past, the trial

judge acted as counsel for defendant on similar drug offenses.

Regardless of the strength of the State's case in this matter,

we are compelled to vacate the judgment of conviction.

       We   start    by   examining   principles       governing    a    judge's

disqualification.         First,   the    Legislature    has     addressed     the

issue, mandating the recusal of judges for reasons set forth in

N.J.S.A.      2A:15-49.       Pertinent    to   this   matter,     the   statute

provides:

              No judge of any court shall sit on the trial
              of or argument of any matter in controversy
              in a cause pending in his court, when he [or
              she]:

                    . . . .

              b.    Has been attorney of record or counsel
                    for a party to such action[.]

              [Ibid.]




                                      10                                 A-0315-15T4
       This standard is reinforced by our Court Rules and the Code

of Judicial Conduct.              "Our rules [] are designed to address

actual       conflicts    and     bias   as      well   as    the    appearance        of

impropriety."          McCabe, supra, 201 N.J. at 43.                   Specifically,

Rule 1:12-1(g) provides a judge "shall be disqualified on the

court's own motion and shall not sit in any matter . . . when

there    is    any   other   reason      which    might      preclude     a   fair    and

unbiased hearing and judgment, or which might reasonably lead

counsel or the parties to believe so."

       Our    Supreme     Court    has   repeatedly       emphasized      New    Jersey

"judges are required to maintain, enforce, and observe 'high

standards of conduct so that the integrity and independence of

the judiciary may be preserved.'"                  DeNike, supra, 196 N.J. at

514 (quoting Code of Judicial Conduct Canon 1); see also McCabe,

supra, 201 N.J. at 41.             Further, Rule 1:18 requires all judges

abide the Code of Judicial Conduct, included as an appendix to

the Part 1 rules.            See Code of Judicial Conduct, Pressler &

Verniero, Current N.J. Court Rules, Appendix to Part 1 at 517

(2017).       "The Code is comprised of seven canons that provide

both    broad    and     specific   standards       governing       the   conduct      of

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

Advisory Comm., 213 N.J. 63, 71 (2013).

              The "overarching objective of the Code of
              Judicial Conduct is to maintain public



                                          11                                    A-0315-15T4
            confidence   in    the   integrity   of   the
            judiciary."      In   re   Advisory  Letter[,
            supra,], 213 N.J. [at] 71.    Such confidence
            "depends on a belief in the impersonality of
            judicial decision-making." United States v.
            Nobel, 696 F.2d 231, 235 (3d Cir. 1982),
            cert. denied, 462 U.S. 1118, 103 S. Ct.
            3086, 77 L. Ed. 2d 1348 (1983).

            [State v. Presley, 436 N.J. Super. 440, 447
            (App. Div. 2014).]

    Canon 3 of the Code was amended on September 1, 2016.            The

Canon requires: "A judge shall perform the duties of judicial

office   impartially    and   diligently."      Thereafter,       several

sections, added by the amendment, provide instances specifically

directing    disqualification.      Although   we   are   aware     these

modifications were adopted long after defendant's trial and the

PCR hearing, we acknowledge the guidance of the Supreme Court on

this subject.     Relative to this matter is Canon 3.17(B)(4)(b),

which states:

            Judges shall disqualify themselves based on
            their prior professional relationships as
            follows:

                 . . . .

                 (b) In proceedings in which a party
            was a former private client for whose matter
            the   judge   had    primary     responsibility,
            disqualification is necessary for a period
            of seven years following the conclusion of
            that      representation.               However,
            disqualification for a period of time in
            excess of seven years from the conclusion of
            the   representation   may    be   required   in
            certain   circumstances.     In    making   that



                                  12                           A-0315-15T4
         determination, a judge should consider,
         among other relevant factors: 1) the scope
         of the representation, including but not
         limited to the cumulative number of matters
         handled by the judge, whether a continuous
         fiduciary relationship existed with the
         client over an extended period of time, and
         the length of time that has elapsed since
         the conclusion of that representation; 2)
         the duration of the representation; 3) the
         nature of the representation, including but
         not limited to the acrimonious nature of the
         underlying litigation and any information
         acquired about the client as a consequence
         of that representation that could cast doubt
         on the judge's impartiality; and 4) in
         respect of a corporate client, whether the
         principals of the entity are the same as
         existed during the representation.

         [Code    of      Judicial      Conduct,      Canon
         3.17(B)(4).]

See Presley, supra, 436 N.J. Super. at 464 (identifying similar

factors when reviewing issue of judicial recusal).

    Additional subsections of Canon 3.17 direct:

              (C) A    disqualification  required  by
         this rule is not subject to the parties'
         waiver.   The judge shall, however, disclose
         to the parties any circumstance not deemed
         by the judge to require disqualification but
         which might be regarded by the parties as
         affecting the judge's impartiality.

              (D) A judge shall address disquali-
         fication    or   issues   of    recusal   and
         disqualification promptly upon recognition
         of   grounds   which  would   give   rise  to
         partiality or the appearance of partiality.

         [Code   of   Judicial   Conduct,   Canon   3.17(C),
         (D).]




                                  13                           A-0315-15T4
    The official comment accompanying Canon 3.17 highlights the

Court's   pronouncement        in   DeNike.         When   determining     whether

"disqualification        is    necessary      to    protect    the      rights    of

litigants and preserve public confidence in the independence,

integrity   and        impartiality     of    the    judiciary,"     "[w]ould       a

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

impartiality?"         Code of Judicial Conduct, Pressler & Verniero,

Current N.J. Court Rules, Appendix to Part 1, comment 1, 2 to

Canon 3, Rule 3.17 at 524 (2017) (quoting DeNike, supra, 196

N.J. at 517).      Finally, discussing whether disqualification is

required in a proceeding where a litigant was a former private

client of the judge more than seven years earlier, the comment

expressly references "judges should be guided by DeNike v. Cupo,

196 N.J. 502."         Pressler & Verniero, supra, comment 5 to Canon

3, Rule 3.17 at 527.

    Here,        the      record      identifies       the      trial      judge's

representation of defendant occurred seventeen years earlier.

Indeed,   this    is    well   beyond   the    mandatory      seven-year    period

commanding recusal stated in Canon 3.17(B)(4)(b).                    However, we

are unconvinced that resolves the question.                  "Neither Canon 3[]

nor Rule 1:12-1 recite an exclusive list of circumstances which

disqualify a judge and require recusal from a matter."                       In re

Advisory Letter, supra, 213 N.J. at 73 (alteration in original)




                                        14                                 A-0315-15T4
(quoting State v. Kettles, 345 N.J. Super. 466, 470 (App. Div.

2001),    certif.   denied,     171   N.J.   443    (2002)).      A   review       of

additional judicial determinations provides guidance governing

recusal when a judge is faced with a litigant who is a former

client.

    In Rivers v. Cox-Rivers, 346 N.J. Super. 418 (App. Div.

2002), this court considered the propriety of a trial judge

presiding over a matrimonial matter involving a litigant who,

fourteen years earlier, was a client of the judge's former law

firm, and for whom the judge appeared as counsel in a prior

divorce proceeding involving the same parties.             Id. at 420.            The

judge denied the motion for recusal filed following his ruling

on the merits of the matrimonial matter.               Ibid.      In doing so,

the judge specifically noted at the time he entered his order he

neither     recognized    the    litigants      nor    recalled       the      prior

representation.     Id. at 420-21.

    The     reviewing    panel    concluded     a   "bright-line      rule"       was

necessary    "to    maintain     public      confidence   in   the      judicial

decision making process," stating:

            Except   when   required   by   the   rule  of
            necessity, where a judge has previously
            represented one of the parties in a matter
            before him against the other, any judicial
            action taken is a nullity, whether the
            conflict    comes   to    light   during   the
            proceedings   before   an   order   enters  or
            reasonably soon following the conclusion of



                                       15                                   A-0315-15T4
          the matter after an order has been entered.
          See N.J.S.A. 2A:15-49b; R. 1:12-1(c), (f).
          That result is required by the need "to
          maintain public confidence in the integrity
          of the judicial process, which in turn
          depends on a belief by litigants and the
          general public alike in the impartiality of
          judicial decisionmaking."

          [Id. at 421 (quoting Kettles,           supra,   345
          N.J. Super. at 469-70).]

We further held "the conflict is non-waivable by the parties,

either   expressly   or   implicitly"   stating    "[i]f   a     judge   is

precluded from presiding over a matter in which a former client

is involved, especially where the current adversary is the party

against whom the prior representation occurred, any action taken

by the judge as a result of the proceeding cannot be recognized

as valid."   Ibid.    Significantly, our decision relied on Nobel

and Kittles, which were criminal proceedings, noting "the public

policy imperatives are the same in civil cases."       Id. at 422.

    A similar approach was followed in State v. McCann, 391

N.J. Super. 542 (2007), when a panel of this court held, "[i]n

the future, if a defendant makes a particularized and credible

assertion of facts that objectively suggest an appearance of

partiality on the part of the judge issuing a search warrant,

based on a prior relationship or otherwise, a 'bright-line' rule

. . . will be applicable."    Id. at 555.




                                  16                              A-0315-15T4
      We    recognize    the     "bright-line"           was     not     specifically

incorporated    by     the   Supreme       Court    in    the    recently         revised

version of Canon 3.17.          We also recognize the instant case is

distinguishable from Rivers, in that here, the judge represented

defendant in an unrelated proceeding.                    See Rivers, supra, 346

N.J. Super. at 422 ("Here, not only are the parties identical

but   the   underlying       subject       matter   is    the    same,       i.e.,      the

marriage and the parties' rights stemming therefrom.").                           We also

recognize the instant case may be distinguished from McCann, as

a matter of degree, not of kind.                McCann, supra, 391 N.J. Super.

at 544-45, 554 (holding disqualification was necessary where the

motion judge previously represented defendant for several years,

and was thus not a "neutral and detached magistrate.").

      In the past we have not differentiated between civil and

criminal matters in the application of the rule precluding a

judge from adjudicating a matter involving a former client.                             See

Rivers, supra, 364 N.J. Super. at 421-22.                  However, we conclude

a criminal prosecution, which implicates the liberty interest of

a criminal defendant, requires a strict application to assure

impartiality,     to    avoid    the       appearance     of     impropriety,           and

importantly, to preserve the integrity of the judicial process.

We    therefore        distinguish          the     requirements             of      Canon

3.17(B)(4)(b),       which    sets     a     seven-year        bar     for    mandatory




                                           17                                     A-0315-15T4
recusal, as insufficient in criminal proceedings.                   The necessity

of preserving the integrity of impartiality and avoiding all

appearances    of     impropriety    must    be   paramount.         Judges        must

always "refrain . . . from sitting in any causes where their

objectivity     and     impartiality     may      fairly     be     brought        into

question."     DeNike, supra, 196 N.J. at 514 (quoting State v.

Deutsch, 34 N.J. 190, 206 (1961)).

    Our      determination      finds    support     in     provisions        of     an

Administrative        Directive     delineating      the         Supreme     Court's

guidelines concerning "Disqualification of Judges in Criminal

Matters."     The directive predominantly addresses circumstances

facing a judge who previously served as a prosecutor, public

defender, or assistant in one of those offices.                      However, the

directive also includes this charge:

            A   judge  should  disqualify   himself  [or
            herself] from hearing a criminal matter
            involving a defendant who the judge, in his
            previous capacity, had personally prosecuted
            or defended, or had represented in a civil
            matter in the past. The reason for this is
            that the appearance of judicial impartiality
            must be preserved.

"There can be no doubt that the directive in question, embodying

guidelines promulgated by the Supreme Court concerning judicial

disqualifications       in   criminal   cases,     has     the    full     force   and

effect of law."       State v. McNamara, 212 N.J. Super. 102, 108-09

(App. Div. 1986), certif. denied, 108 N.J. 210 (1987).                              The



                                        18                                   A-0315-15T4
directive was issued on September 19, 1983, and has not been

modified or repealed.

    We also highlight the warning sounded by this court in

State v. Horton, 199 N.J. Super. 368 (App. Div. 1985), which

reversed a conviction and granted a new trial to a defendant who

noted during allocution the judge had been his attorney.                   We

held:   "The   potential   for      invidious,   though,    we   are    sure,

unfounded, suppositions as to the court's motive in trying and

sentencing a former client causes us strongly to suggest that a

trial judge faced with such situation should recuse himself and

have another judge assigned to try the case."              Id. at 377.      We

explained:

          The public has no way of knowing (a) what
          confidences, if any, defendant imparted to
          the [the judge] when represented by him . .
          . (b) whether the judge was a public
          defender or, if not, whether there was a fee
          problem; or (c) whether there were other
          offenses that defendant admitted to during
          conferences with his then attorney. . . .
          [T]he prior lawyer-client relationship could
          also   have    given   the   appearance   of
          influencing trial rulings.

          [Id. at 375.]

    For      these   reasons   we    cannot   countenance     the      State's

suggestion, adopted by the PCR judge, to deny relief because

defendant engaged in a trial strategy to proceed to trial before

a judge who previously represented him.          Even if this were true,




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we   reject    such       a     contention        as   it        would    compromise         the

principles that must guide members of the judiciary.                              See State

v. Tucker, 264 N.J. Super. 549, 555 (App. Div. 1993) (explaining

even an appearance of impropriety can erode public confidence);

see also Rivers, supra, 346 N.J. Super. at 422-23 ("If there is

validity to the sense of the trial court judge in this matter

that defendant knew of the disqualifying involvement early on,

and was withholding the information as a 'trump card,' that

alone   is    no       ground    for    recognizing         the     inherently         invalid

order.").

     Here, it is undisputed the judge's prior representation of

defendant     was      known     to    all   parties        at    the     time   of     trial.

Therefore,    when       an     instance     arises    where       a     judge   previously

represented        a     criminal       defendant,          we      direct       the      prior

representation and relationship shall be clearly stated on the

record, and the judge then be disqualified from proceeding in

the matter.        See Horton, supra, 199 N.J. Super. at 375 ("If for

no other reason than to give both the State and defendant an

opportunity         to        make      a     record         concerning           potential

disqualification, the very least that the trial judge should

have done was to place this information on the record at the

commencement of the proceeding.").                     To demand any less would

invite questions about the impartiality of the justice system




                                             20                                        A-0315-15T4
and thereby "threaten[] the integrity of our judicial process."

DeNike, supra, 196 N.J. at 515.

       Accordingly, we reject the conclusion of the PCR judge that

the trial judge was unaware of the prior representation, despite

counsels' statements to the contrary.                   We further reject the PCR

judge's rationale that defendant suffered no prejudice by what

was   found   to   be    an    employed   trial         strategy.         The   prejudice

envelops the entire process by casting doubt and leaving the

lingering     question        of   whether     a    trial    judge's        familiarity

favored a defendant, or conversely, caused a trial judge to

overcompensate so as not to reflect an appearance of bias.                               We

further conclude defendant's late presentation of the issue will

not    override    the    public      policy       to    assure     an     independent,

impartial judiciary.           "[J]ustice must satisfy the appearance of

justice."     Deutsch, supra, 34 N.J. 190 at 206 (quoting Offutt v.

United States, 348 U.S. 11, 14, 75 S. Ct. 11, 13, 99 L. Ed. 11,

16 (1954)).

       The order denying PCR is reversed and we remand the matter

to    the   Criminal     Presiding     Judge       to    vacate     the    judgment     of

conviction and reassign the matter for retrial.

       Reversed and remanded.




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