Opinion
DOCKET NO. A-2306-13T1
07-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BOBBY BOOKER, a/k/a BOBBY JAM BOOKER, ROBERT J. BOOKER, Defendant-Appellant.
Ruth E. Hunter, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hunter, on the brief). Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Gillet, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Hayden and Sumners. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-07-1054. Ruth E. Hunter, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Hunter, on the brief). Brian D. Gillet, Deputy First Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Gillet, on the brief). PER CURIAM
On January 19, 2012, defendant Bobby Booker pled guilty to two counts of Middlesex County Indictment No. 11-07-1054, charging him with second-degree possession of cocaine with intent to distribute within five hundred feet of public property, N.J.S.A. 2C:35-5(a) and 2C:35-7.1, and third-degree possession of cocaine with intent to distribute within one thousand feet of a school, N.J.S.A. 2C:35-5(a) and 2C:35-7. Pursuant to the plea bargain, the State agreed to defendant's entry into Drug Court as a condition of special probation, reserving the option to ask for an eight-year term of imprisonment with four years of parole ineligibility if defendant was terminated from the program.
At the sentencing hearing on February 23, 2012, the judge, to whom we refer hereafter as the Drug Court Judge, asked defendant if he wished to say anything prior to sentencing. Defendant responded, "No, I'm . . . good." She further advised defendant that he was entering a treatment program "tomorrow," and "[a]fter their blackout period[,] you will then be required to come into the court and see me on a regular basis."
On April 26, 2013, a violation of probation (VOP) was filed against defendant. The specifications included a new arrest and conviction for violating an order of protection, N.J.S.A. 2C:29-9(b); failure to complete a "partial hospitalization" program; positive drug screens in June and July 2012; failure to pay financial obligations; and two failures to appear in court in May 2012 and again in November 2012. As to the latter, the specifications indicated that defendant's failure to appear in November 2012 before the Drug Court Judge resulted in the issuance of a warrant that was not executed until March 9, 2013.
On August 20, 2013, defendant appeared with counsel before a different Law Division judge, who noted, "the last time I sat in . . . this case, . . . I was covering for [the Drug Court Judge]." Unfortunately, we have not been provided with any transcript of proceedings on the VOP prior to August 20. In any event, the second judge explained the circumstances for defendant's VOP being before him, namely, "[The Drug Court Judge] can't do this, she represented [defendant]."
Defense counsel indicated that defendant was not denying the specifications in the VOP, but he wished to offer some explanations. However, before doing so, counsel advised that "[the Drug Court Judge] recused herself due to a conflict with [defendant]. She represented him as his criminal defense attorney . . . when he was [eighteen] years old." Defense counsel stated there was an "appearance of impropriety," and the Drug Court Judge "was mindful enough to recuse herself for future proceedings when this was brought to the Court's attention." (Emphasis added). Defendant moved to vacate his guilty plea "due to an inherent conflict with the [] judge."
Defense counsel agreed to the second judge's suggestion that the hearing on the VOP continue with defendant being permitted thereafter to move for reconsideration after further briefing. Defendant was placed under oath and questioned regarding the specifications contained in the VOP. The judge found him guilty of the charges, considered the arguments of counsel and the prosecutor regarding the sentence to be imposed, and permitted defendant to provide an extensive allocution regarding his intractable drug abuse. At no time during that discussion did defendant provide details of the Drug Court Judge's prior representation, or the circumstances by which it was brought to her attention.
Ultimately, after considering whether he was without discretion to deviate from the alternative bargained-for sentence, the judge imposed a sentence of eight years with a four-year period of parole ineligibility. Neither the extended sentencing colloquy nor the judgment of conviction (JOC) include the judge's findings as to applicable aggravating and mitigating sentencing factors.
Defendant moved for reconsideration by motion filed September 19, 2013. Relying primarily on our opinion in Rivers v. Cox-Rivers, 346 N.J. Super. 418 (App. Div. 2002), defendant argued his original guilty plea should be vacated because "where a judge [has] previously represent[ed] one of the parties in the matter before [the judge], any judicial action taken is a nullity." The prosecutor countered by arguing that defendant should not be permitted to
The notice of motion reflects that it was supported by counsel's certification, but we have not been furnished with any documents other than the notice.
withhold this information that . . . the judge represented him; let her sentence him; go to Drug Court; do . . . a year in Drug Court; then when he violates [probation], and he's facing hard time, [] come back and say no, [] I want to start all over [] because you represented me once. [] I didn't tell you before, but [] I'm telling you now[.]The prosecutor further argued that Rivers was inapposite and Rule 1:12-1, which governs disqualification of judges, did not require the Drug Court Judge to recuse herself since her representation of defendant last occurred in 1990. Lastly, the State argued defendant suffered no prejudice.
The State's appendix includes a copy of the 1989 indictment, the plea form and the 1990 JOC evidencing the Drug Court Judge's representation of defendant.
The judge permitted defendant to speak. He began by stating that "[m]y mother wrote a letter to [the Drug Court Judge] . . . telling her she can't sentence me, and I need [] this Drug Court and everything. . . . [The Drug Court Judge] should have that letter." Defendant also claimed, without any detail, it was not "the first time [he'd] been in front of [the Drug Court Judge]." At another point in the extended colloquy, defendant asserted that he never raised the issue before "[b]ecause [he] didn't know nothing about the law."
The judge denied defendant's motion, noting that defendant never raised the issue of the Drug Court Judge's prior representation "until [he] got banged on the VOP." The judge reasoned that Rule 1:12-1(c) did not apply, and the issue should be considered under subsection (g) of the Rule. The judge further found that defendant "never raised" the issue of the Drug Court Judge's "previous representation during sentencing." He concluded that "[defendant] failed to show that [the Drug Court Judge] should have disqualified herself pursuant to court rule or statute, or that her previous representation of [defendant] [twenty] years ago precluded a fair, and unbiased hearing." He entered a conforming order, and this appeal followed.
Defendant raised a single point in his brief:
POINT ISince defendant's brief was filed, we issued our opinion in State v. Presley, 436 N.J. Super. 440 (App. Div. 2014), which we discuss in greater detail below. At oral argument before us, defendant advanced a different position, specifically, that we should remand the matter for an evidentiary hearing to determine when the Drug Court Judge first became aware of her prior representation of defendant. Having considered the arguments raised in light of the record and applicable legal standards, we affirm, but remand the matter for reconsideration of the sentence imposed on the VOP.
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE [DRUG COURT] JUDGE WHO ACCEPTED DEFENDANT'S PLEA AND ORGINALLY SENTENCED HIM HAD PREVIOUSLY REPRESENTED HIM IN ANOTHER CRIMINAL MATTER.
Initially, the appeal presents unusual questions as to the appropriate standard of review. Defendant's notice of appeal is from the August 21, 2013 JOC on the VOP and the order denying reconsideration. Motions for reconsideration of sentence under Rule 3:21-10(a) are addressed to the discretion of the judge. State v. E.R., 273 N.J. Super. 262, 274 (App. Div. 1994). Defendant's primary argument, however, is that his guilty plea should be vacated because of the Drug Court Judge's prior representation of him. Although not technically a motion to withdraw his guilty plea, generally speaking, motions seeking to set aside a guilty plea are also addressed to the judge's sound discretion. State v. Slater, 198 N.J. 145, 156 (2009). A similar discretionary standard of review applies to motions seeking the judge's recusal. State v. McCabe, 201 N.J. 34, 45 (2010). Nonetheless, we conclude that in this case, our review is de novo because it necessitates a determination as to whether the second judge applied the proper legal standard. Ibid.
We have recognized both the statutory basis for disqualification of a judge and the Rules of Court that address the issue. State v. Horton, 199 N.J. Super. 368, 375 (App. Div. 1985). N.J.S.A. 2A:15-49 provides in pertinent part:
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:
. . . .
"Challenges to a judge for any of the causes mentioned in [N. J.S.A.] 2A:15-49 . . . shall be made before the trial or argument." N.J.S.A. 2A:15-50. However, in Ferren v. City of Sea Isle City, 243 N.J. Super. 522, 526 (App. Div. 1990), we noted that the Court Rule preempts the legislation in light of the Court's constitutional authority over the administration of the courts. We therefore confine our discussion to the Court Rule.
b. Has been attorney of record or counsel for a party to such action[.]
Rule 1:12-1(c) and (g) provide:
The judge of any court shall be disqualified on the court's own motion and shall not sit in any matter, if the judge
. . . .
(c) has been attorney of record or counsel in the action;
. . . .
(g) 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.
Furthermore, pursuant to Rule 1:18, all judges in New Jersey must abide by the Code of Judicial Conduct. "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) (citation omitted). Specifically, Canon 3(C)(1) provides that "[a] judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned," and provides a list of examples. However, "'[n]either Canon 3C nor Rule 1:12-1 recite an exclusive list of circumstances which disqualify a judge and require recusal from a matter.'" Advisory Letter, supra, 213 N.J. at 73 (alteration in original) (quoting State v. Kettles, 345 N.J. Super. 466, 470 (App. Div. 2001), certif. denied, 171 N.J. 443 (2002)). In short, "[o]ur rules [] are designed to address actual conflicts and bias as well as the appearance of impropriety." McCabe, supra, 201 N.J. at 43.
We agree with the second judge that Rule 1:12-1(c), defining an actual conflict of interest, does not apply to these circumstances. In Horton, supra, 199 N.J. Super. at 374-75, during his allocution at sentencing, the defendant disclosed the judge's prior representation of him in a juvenile delinquency proceeding more than five years earlier. We explained that disqualification would not "technically" be required under Rule 1:12-1(c) because the judge had not been "an attorney for [the] defendant 'in the action'" then before him. Id. at 376.
However, subsection (g) does apply. Consideration of whether a judge should recuse herself so as to avoid the appearance of impropriety poses a basic question for resolution: "'Would a reasonable, fully informed person have doubts about the judge's impartiality?'" State v. Dalal, ___ N.J. ___, ___ (2015) (slip op. at 15) (quoting DeNike v. Cupo, 196 N.J. 502, 517 (2008)).
The recusal or disqualification of a judge based upon his or her actions prior to becoming a judge has been considered in a variety of factual circumstances. Particularly relevant here, we note an Administrative Directive in effect since 1983, that provides,
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.See State v. McNamara, 212 N.J. Super. 102, 108-09 (App. Div. 1986) (discussing Administrative Directive), certif. denied, 108 N.J. 210 (1987).
In Horton, supra, 199 N.J. Super. at 377, considering subsection (g) of the Rule, we noted that "[t]he 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." Ibid. Because we reversed the defendant's conviction on other grounds, id. at 374, our admonition only had prospective application to a new trial. Id. at 377. Our decision did not address the circumstances presented here, i.e., whether absent any showing of bias or impartiality, a defendant should be entitled to retract his voluntarily-entered guilty plea based upon the judge's undisclosed prior representation.
Current subsection (g) of the Rule was formerly subsection (f) and cited as such in Horton, supra, 199 N.J. Super. at 376, and some of the other cases we cite. --------
In State v. Tucker, 264 N.J. Super. 549, 553-54 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994), the judge denied the defendant's recusal motion made during a pre-trial hearing. The motion was premised upon the judge having secured indictments against the defendant while an assistant prosecutor. Ibid. We reversed the defendant's conviction following a jury trial based on the judge's refusal to recuse himself. Id. at 555; see Kettles, supra, 345 N.J. Super. at 470 (finding no distinction from the facts presented in Tucker, supra, even though the defendant waived any objection at trial).
In Rivers, supra, 346 N.J. Super. at 420, the defendant in a post-judgment matrimonial matter moved for a rehearing and recusal of the judge, or vacation of the prior order, because the judge previously represented the plaintiff during the parties' separation before their divorce. The judge denied the defendant's motion, but we reversed, citing "the need to apply a bright-line rule." Id. at 421.
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.
[Ibid. (emphasis added) (citing N.J.S.A. 2A:15-49(b); R. 1:12-1(c), (g)).]
We distill from these cases and the Court's clear Administrative Directive that a judge must disqualify himself or herself from presiding over a matter involving a known former client. However, defendant argues that under Rivers, because the Drug Court Judge accepted his plea and sentenced him, regardless of her foreknowledge of the prior representation, defendant is entitled to have his guilty plea vacated, because the JOC is an "nullity."
Cases decided after Rivers have tempered such an expansive reading of its holding. In State v. McCann, 391 N.J. Super. 542, 543 (App. Div. 2007), we concluded a municipal court judge should not have acted on a search warrant application because he had previously represented the defendant. However, we reversed the Law Division's order suppressing the evidence resulting from the search. Id. at 554. We noted, among other things, that the "defendant [made] no assertion of bias on the part of the judge who signed the warrant and the facts concerning the prior relationship suggest none." Providing prospective guidance, we held that "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." Id. at 555 (emphasis added).
Despite the enunciation of a "bright-line" remedy in such situations, we distinguished the facts presented in McCann from those presented in Presley, supra, 436 N.J. Super. at 443, specifically concluding that "the remedy sought by [the] defendants," suppression of evidence, "w[ould] not serve the interests of the Code of Judicial Conduct," and we "affirm[ed] the order denying [the] defendants' motion for such relief." In Presley, the judge issued various search warrants directed against the defendant, Presley, and his co-defendant, Collins, who the judge had prosecuted seven years earlier while an assistant prosecutor. Id. at 443-44. At no point during the year that followed the defendants' indictment did anyone bring that fact to the judge's attention. Id. at 444.
After a second indictment was issued against the defendants and before a scheduled status conference on that case, the judge approved other warrants against the defendants and others. Ibid. Within the context of proceedings involving one of the pending indictments and without either defendant raising the issue, the prosecutor brought the judge's prior prosecution of Collins to the attention of the judge and defense counsel, leading the judge to immediately recuse himself from all matters involving Collins. Id. at 445.
Both defendants sought to declare the warrants issued by the judge invalid and all evidence obtained thereby suppressed. Ibid. Because the judge had personally prosecuted Collins, Pressley "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 . . . all the defendants in both indictments." Id. at 446. Collins argued that it was unnecessary to demonstrate any "actual bias" by the judge, or that she "had any responsibility to raise the issue of a conflict while her prior matters were proceeding before the judge." Ibid. She asserted a "right to make 'a strategic assessment' as to whether and when a motion should be brought." Ibid.
We concluded that, pursuant to Rule 1:12-1(g), the judge had a "non-waivable conflict that required his disqualification from matters involving" Collins. Id. at 448. However, having promptly disqualified himself, we noted the question became "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.'" Id. at 449 (quoting DeNike, supra, 196 N.J. at 519).
We initially noted that contrary to the facts presented in McCann, there was no reason to believe that the judge recalled his prior prosecution of Collins. Id. at 453. Nor did the defendant in McCann "delay raising the disqualifying facts as Collins did [] for strategic reasons." Ibid. We referenced a number of prior decisions, including Tucker, Kettles and Rivers, noting that in all, the disqualifying prior representation was brought to the judge's attention or recognized by the judge herself prior to a recusal request. Id. at 455. Moreover, we specifically rejected the defendants' argument that whether the judge had knowledge of the disqualifying relationship prior to taking action was irrelevant. Id. at 456.
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."
. . . .[T]he 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.
[Id. at 456-57 (quoting DeNike, supra, 196 N.J. at 519.]
Further, we rejected Collins' claim that she need not have advised the judge of the disqualifying conduct. Id. at 462. While "her failure to raise the issue earlier should not alone deprive [her] of a remedy," the obligation to disclose rests upon each party with knowledge of the prior representation, and the failure to disclose for strategic purposes "create[s] the potential for manipulation of the judicial process that would undermine public confidence." Ibid. In sum, we concluded that "nullification of the judge's orders [] would not serve the purpose of the disqualification rules and Code of Judicial Conduct." Id. at 465.
In this case, we wholly endorse the approach taken by the Presley panel. We agree that the Drug Court Judge's prior representation of defendant, even though more than twenty years earlier, was a disqualifying relationship under Rule 1:12-1(g) and the Administrative Directive. The record is clear, however, that the judge recused herself when she became aware of the prior representation. As we noted above, defense counsel himself told the second judge that the Drug Court Judge "was mindful enough to recuse herself for future proceedings when this was brought to the Court's attention." The Drug Court Judge's lack of foreknowledge when she accepted defendant's plea and sentenced him to Drug Court also was implicit from comments made by the second judge. Further, in this case,
[w]e are also convinced that . . . [a] "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 having the discretion to invoke dispositive claims of judicial disqualification at will.Defendant voluntarily pled guilty as part of an admittedly generous plea agreement, which, despite his serious criminal history, provided him with an opportunity to treat his chronic drug dependency. The record fails to reveal that defendant ever brought the disqualifying information to the Drug Court Judge's attention for more than a year after he was sentenced. Only when he faced a violation of probation and likely incarceration was the information revealed.
[Presley, supra, 436 N.J. Super. at 465-66.]
We also reject defendant's entreaty that, in light of our holding in Presley and its application to these facts, we must remand the matter for an evidentiary hearing because there is a factual dispute about when and how the Drug Court Judge became aware of her prior representation of defendant. Given defense counsel's comments cited above, there is no factual dispute on this record.
Defendant seeks to generate a factual dispute, noting that during his colloquy with the second judge, he referenced a letter his mother sent to the Drug Court Judge, implying this was the impetus for that judge's recusal. He claims that when that letter was received by the Drug Court Judge is critical under Presley's holding. Perhaps, but this record does not include the letter, nor does it include a certification or affidavit from defendant's mother that could have established this allegedly critical fact. In short, those in the best position to raise factual disputes about when the Drug Court Judge first became aware of her prior representation of defendant have failed to do so. A remand is unnecessary under these circumstances.
Lastly, we are compelled nonetheless to remand the matter for resentencing. As noted, the second judge was unsure whether he had discretion to impose a sentence other than eight years imprisonment with a four-year period of parole ineligibility. Indeed, there was extensive discussion of a lesser sentence given the facts of the case which involved a small amount of cocaine. When he did impose sentence, the judge did not express his consideration of any aggravating or mitigating sentencing factors, and none are reflected on the JOC. In State v. Bishop, 429 N.J. Super. 533, 551 (App. Div.), certif. granted, 216 N.J. 14 (2013), we set forth the guidelines for resentencing a defendant who violated a special probationary sentence that included Drug Court. In short, a court that finds itself in such circumstances is "not deprive[d] . . . of its ultimate sentencing authority." Ibid.
Affirmed, but remanded for reconsideration of the sentence imposed. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION