Opinion
DOCKET NO. A-5629-13T1
05-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PETER RALLIS, Defendant-Appellant.
Alton D. Kenney argued the cause for appellant (Starkey, Kelly, Kenneally, Cunningham & Turnbach, attorneys; Mr. Kenney, of counsel and on the briefs; Clifford P. Yannone, on the briefs). Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Heinzel, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ostrer and Manahan. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 13-03-0502. Alton D. Kenney argued the cause for appellant (Starkey, Kelly, Kenneally, Cunningham & Turnbach, attorneys; Mr. Kenney, of counsel and on the briefs; Clifford P. Yannone, on the briefs). Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Heinzel, of counsel and on the brief). PER CURIAM
Defendant Peter Rallis pleaded guilty to first-degree possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:35-5(b)(1). He was sentenced to a ten-year term of incarceration, which the trial court stayed pending appeal. Defendant entered his plea after Judge Anthony J. Mellaci, Jr., denied his motion to suppress cocaine seized pursuant to a search warrant. Defendant does not argue that the warrant lacked probable cause. Rather, he argues that the judge who issued the warrant (not Judge Mellaci) should have recused himself, because his brother worked for the county prosecutor's office that sought the warrant. As a result, defendant contends the trial court should have suppressed the evidence.
We disagree. The question of whether a judge is required to disqualify himself is distinct from the question of whether he is a "neutral and detached magistrate." Based on our review of the record, we are satisfied that defendant failed to meet his burden to demonstrate actual bias, which is necessary to invalidate the warrant. Nor are we satisfied that suppression was required based on an alleged appearance of partiality by the warrant judge. We therefore affirm.
I.
The warrant was issued on April 30, 2012, based upon an affidavit presented by Detective James Powers of the Monmouth County Prosecutor's Office's Narcotics Strike Force. Powers described a four-month narcotics investigation of a target known as "Pete," and later identified as defendant. With the assistance of a confidential informant and an undercover officer, Powers stated that narcotics were purchased from Rallis on four occasions between January and April 2012, all outside the same residence in Holmdel. Powers identified a total of three other detectives who were involved in the investigation, none of whom were the warrant judge's brother.
The warrant was executed on May 9, 2012. The return of the warrant, see Rule 3:5-5(a), is not in the record before us. However, in his decision denying the suppression motion, Judge Mellaci recounted that the Narcotics Strike Force team entered the Holmdel residence, confronted defendant, and seized almost twelve ounces of cocaine, over $12,000 in cash, and other contraband. In March 2013, defendant was charged in a thirteen-count indictment. The first nine counts, including second- and third-degree offenses, related to the controlled buys. The remaining counts related to evidence seized pursuant to the warrant.
Defendant's wife was also indicted. After the court granted defendant's motion to disclose the name of the confidential informant, the State dismissed the first nine counts of the indictment. The charges against the wife were dismissed as part of defendant's plea bargain.
In support of his motion to suppress, defense counsel submitted a certification contending, "to the best of [his] knowledge and belief," the warrant judge's brother held various investigatory positions in the county prosecutor's office Counsel alleged the judge's brother had once supervised the Narcotics Strike Force, Detective Powers, and one of the officers Powers named in his affidavit. Counsel asserted the brother "would on a regular basis interact with" Powers, the other officer, and other Narcotics Strike Force members.
Judge Mellaci denied the motion. Relying on the allegations in defense counsel's certification, the judge stated:
[D]efendant seeks to suppress the fruits of a search warrant supported by probable cause based on the fact that the issuing judge's brother at the time of the signing of the warrant was employed by the [Monmouth County Prosecutor's Office] and had been since the 1980s.
The defendant claims that [the warrant judge] was not a . . . "neutral and detached magistrate," . . . as required by the Fourth Amendment and Coolidge v. New Hampshire, 4 03 U.S. 443[-]450, [91 S. Ct. 2022, 2029, 29 L. Ed. 2d 564, 573] (1971), because of his brother's employment history at the [Prosecutor's Office], and because at one point he was a member of the Narcotics Strike Force, Major Crimes Unit, and worked with both Detectives Powers and [a second named officer].
Defendant makes this claim even though [the brother] has not once been mentioned in the present matter's affidavit, indictment, or any other discovery material that had been provided to this [c]ourt aside from defendant's own brief and certifications.
Judge Mellaci rejected defendant's argument that suppression was compelled by In re Advisory Letter Number 7-11, 213 N.J. 63 (2013), in which the Supreme Court agreed with the Advisory Committee on Extrajudicial Activities that, to avoid the appearance of partiality, a municipal court judge was disqualified from sitting in a municipality where his son served as a police officer. Judge Mellaci noted that the Court's decision was rendered almost a year after the warrant was issued in this case. He viewed it as an apparent change in judicial policy, noting that after it was issued, the warrant judge was transferred to the Civil Part of the Law Division. Prior to that, notwithstanding the judge's well-known relationship with his brother, the judge was assigned to preside over the juvenile delinquency docket between 2003 and 2006, and thereafter served in the Criminal Division, all the time handling cases developed by the prosecutor's office.
Judge Mellaci also rejected defendant's argument that the "bright line rule" prospectively announced in State v. McCann, 391 N.J. Super. 542, 555 (App. Div. 2007) mandated suppression. The McCann court pronounced that suppression should occur whenever "a defendant makes a particularized and credible assertion of facts that objectively suggest an appearance of partiality on the part of the [warrant judge], based on a prior relationship or otherwise . . . ." Ibid. Judge Mellaci concluded that defendant had not presented "particularized or credible assertions of facts" suggesting an appearance of impropriety, noting that defendant had presented no evidence that the warrant judge knew defendant, or that the warrant judge's brother was directly involved in the investigation before the warrant issued. Judge Mellaci entered an order denying the motion on February 19, 2014.
The judge also denied defendant's motion for a Franks hearing. See Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978). The court held that defendant failed to make a sufficient preliminary showing of material misrepresentations in the affidavit, warranting a hearing. Defendant has abandoned the Franks issue on appeal, although he had preserved it in his plea agreement.
Defendant thereafter filed a motion seeking additional discovery regarding the brother's responsibilities, and organizational charts covering the period of the investigation. In opposing the motion, the prosecutor's office produced the charts, and a certification from the brother stating, "I had no involvement in the investigation or prosecution of Peter . . . Rallis." The brother stated that between November 1, 2011 and May 31, 2012, he was assigned as a lieutenant in the Criminal Enterprise Bureau (CEB). The organizational charts for the period reflected that the CEB was outside the chain of command of the Narcotics Strike Force.
The "Investigation Division" of the prosecutor's office included three major "sections": Criminal Investigation, Narcotics and Criminal Enterprise Investigation, and Special Investigation. Each was headed by a captain and divided into two or three bureaus, which in turn were headed by a lieutenant. The Narcotics and Criminal Enterprise Investigation Section included the CEB, headed by the warrant judge's brother, and consisted of a Gang Investigations Unit and an Organized Crime Unit (each staffed by a detective-sergeant and other detectives) and an Electronic Surveillance Squad (staffed by one or two detectives, depending on the month). The Narcotics Bureau consisted of the Narcotics Strike Force and the Bayshore Unit, each staffed by a detective-sergeant and other officers.
Powers and all the other officers he named in his affidavit were assigned within the Narcotics Bureau. The sole exception appears to be the officer who conducted surveillance only during the first controlled buy in January 2012. A detective by that name was assigned to the Electronic Surveillance Squad.
Defendant withdrew his discovery motion before it was decided, in conjunction with entry of the plea agreement. Defendant's appeal followed his sentencing on July 31, 2014. He presents the following points for our consideration:
POINT I
THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE [THE WARRANT JUDGE] HAD A FAMILIAL CONFLICT DUE TO HIS BROTHER'S POSITION AS AN OFFICER WITH THE MONMOUTH COUNTY PROSECUTOR'S OFFICE THUS REQUIRING HIS RECUSAL FROM REVIEWING AND APPROVING THE SEARCH WARRANT APPLICATION.
A. [The Warrant Judge's] Recusal was Required Pursuant to the Code of Judicial Conduct and New Jersey Rule of Court 1:12-1.
B. [The Warrant Judge's] Recusal was Required Pursuant to State v. Deutsch, State v. Connelly, and In [re] Advisory Letter No. 7-11.
POINT II
THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO SUPPRESS EVIDENCE BECAUSE ISSUANCE OF THE SEARCH WARRANT BY [THE WARRANT JUDGE] CONTRAVENED THE "NEUTRAL AND DETACHED MAGISTRATE" REQUIREMENT OF THE FOURTH[] AMENDMENT TO THE UNITED STATES CONSTITUTION
AND ARTICLE 1, PARAGRAPH 7 OF THE NEW JERSEY CONSTITUTION THUS REQUIRING SUPPRESSION OF THE EVIDENCE AND FRUITS THEREOF.
II.
We conduct a plenary review of legal conclusions related to a motion to suppress. State v. Rockford, 213 N.J. 424, 440 (2013). Although we defer to a trial court's findings based on testimonial and documentary evidence presented at an evidentiary hearing, State v. Hubbard, 222 N.J. 249, 268-69 (2015), no hearing was held here warranting such deference. Cf. State v. Diaz-Bridges, 208 N.J. 544, 551, 558 (appellate court may review de novo findings based solely on trial court's review of videotape).
However, we agree with Judge Mellaci that there is no record evidence that the warrant judge's brother was involved in the investigation preceding issuance of the warrant. The brother's certification is unrebutted. Powers's affidavit does not mention the brother. The organizational chart indicates that the brother was responsible for a different bureau outside the lines of authority of the Narcotics Strike Force. Although a surveillance officer in the Electronic Surveillance Squad, within the brother's bureau, assisted the investigation one day, there is no evidence of the brother's awareness, let alone supervision, of that detective's activities in the investigation. Defense counsel's certification that the brother would regularly interact with the officers involved in the investigation does not contradict the brother's assertions. Besides, counsel's certification, made upon information and belief, is not competent evidence. See Jacobs v. Walt Disney World Co., 309 N.J. Super. 443, 454 (App. Div. 1998) (stating that factual assertions based merely upon information and belief are inadequate under Rule 1:6-6). Furthermore, defendant abandoned his effort to secure additional evidence regarding the brother's suspected involvement.
The issue before us is a legal one. Should the fruits of the search be suppressed because the warrant judge had a sibling relationship to a prosecutor's office detective who was not involved in the investigation? Whether the warrant judge should have recused himself from hearing the warrant application to avoid the appearance of partiality is relevant to our analysis, but it is not the ultimate question we must answer. Rather, we must first determine whether the judge ceased to be a "neutral and detached magistrate." See State v. Marshall, 199 N.J. 602, 611-12 (2009) ("[B]oth the Federal and New Jersey Constitutions require that the warrant be issued by a 'neutral and detached magistrate.'"). Second, even if not compelled by the Constitution, we must determine whether suppression is required to "maintain public confidence in the integrity of the judiciary." State v. Presley, 436 N.J. Super. 440, 457 (App. Div. 2014) (quoting In re Advisory Letter No. 7-11, supra, 213 N.J. at 71).
A.
We recognized in Presley that the ethical standards governing disqualification are not coextensive with the standards applicable to a "neutral and detached magistrate" under the Constitution:
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, 213 N.J. at 71, 61 A.3d 136, we are equally concerned with the appearance of partiality, even in the absence of actual prejudice to a litigant.
. . . .
[M]ost matters relating to judicial disqualification [do] not rise to a constitutional level. 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.'
[Presley, supra, 436 N.J. Super. at 457-58 (some internal quotation marks and citations omitted).]
In Presley, the warrant judge issued various warrants leading to the arrest of a defendant, Shilyre Collins, whom the judge, in his previous capacity as an assistant prosecutor, had prosecuted seven years earlier. Id. at 443. Collins was the only one of several co-defendants with whom the judge had a prior connection. Id. at 443-44. There was no evidence the judge recalled his prosecution of Collins, nor did anyone contend the judge was actually biased. Id. at 446. We held that the judge had a non-waivable conflict under Rule 1:12-1(g), Canon 3(C) of the Code of Judicial Conduct, and 1983 Administrative Directive. Id. at 448, 458-60.
Nonetheless, we found the judge was "neutral and detached," and, finding no constitutional violation, we did not require suppression as a remedy. Id. at 459-60. We reviewed historical examples of the constitutional defect involving magistrates who acted in a law enforcement capacity, or had a personal financial interest in the issuance of warrants. Id. at 457 (discussing 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 Connally v. Georgia, 429 U.S. 245, 251, 97 S. Ct. 546, 549, 50 L. Ed. 2d 444, 449 (1977)). We noted that the defendants did not claim the trial judge was actually biased. Id. at 459-60.
Similarly, the panel in McCann, supra, 391 N.J. Super. at 554, notwithstanding its adoption of a "bright line rule," found no violation of the "neutral and detached magistrate" requirement. In McCann, supra, the municipal court judge who issued a warrant had a long-term relationship with the defendant, having represented him and his family members on multiple occasions. Id. at 545. The court held there was an appearance of impropriety compelling recusal. Id. at 554. Nonetheless, it did not find a constitutional violation compelling suppression in that case. Id. at 554-55. The panel noted that in State v. Mandravelis, 325 A.2d 794 (N.H. 1974), and United States v. Heffington, 952 F.2d 275 (9th Cir. 1991), no constitutional violation was found, despite a judge's prior representation of persons involved.
Other courts have reached the same conclusion on similar facts. See, e.g., United States v. McKeever, 906 F.2d 129, 131 (5th Cir. 1990) (finding judge was "neutral and detached" although her spouse was deputy in the sheriff's department, but was not present at issuance or execution of the warrant); People v. Gallegos, 251 P.3d 1056, 1062-66 (Colo. 2011) (no violation of "neutral and detached magistrate" requirement, where wiretap judge's son worked for district attorney); Commonwealth v. Sharp, 683 A.2d 1219, 1222-23 (Pa. Sup. Ct. 1996) (although warrant judge should have recused herself because her husband, the county sheriff, was involved in the investigation, there was no violation of the "neutral and detached magistrate" requirement because the sheriff was not the affiant).
Likewise, we find no constitutional violation here. There is no evidence of actual bias or partiality by the warrant judge. His brother was not involved in the investigation. There is no basis to conclude that the brother had any information about the investigation, let alone that he shared it with the judge. Nor is there any reason to believe that the judge's action would have any effect on his brother's personal standing in his office. In sum, there was no violation of the Fourth Amendment's "neutral and detached magistrate" requirement.
B.
We turn to the second issue: whether suppression is required to maintain public confidence in the integrity of the judicial process. The panel in Presley, supra, 462 N.J. Super. at 462, declined to follow McCann's pronouncement that proof of objective facts warranting disqualification for an appearance of partiality justifies suppression. Instead, the Presley panel stated that a court must review the totality of the circumstances to determine whether suppression is appropriate. Id. at 463. The panel identified a non-exclusive list of factors:
(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 conflict;
(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;
(5) the length of delay in raising the issue and any reason for such delay;
(6) prejudice to the adverse party caused by the delay in raising the disqualification issue; and
(7) sufficiency of support for the warrant or order issued by the judge.
[Id. at 462-63.]
As between the "bright line rule" in McCann and the "totality of the circumstances" rule in Presley, we find the latter more persuasive. However, in both McCann and Presley, the court found, as a starting point, that the judge had an unwaivable conflict that required disqualification. Therefore, we view as a threshold question whether the warrant judge was required to recuse himself.
The State does not ask us to revisit whether suppression is an appropriate remedy in the absence of a constitutional violation. We nonetheless note that in both McCann and Presley, the court adopted a rule that authorized the suppression of evidence absent a constitutional violation of the "neutral and detached magistrate" requirement. See Presley, supra, 436 N.J. Super. at 460-61. It is one thing to require a new trial where a judge should have disqualified himself because of an appearance of impropriety. See, e.g., DeNike v. Cupo, 196 N.J. 502 (2008); Rivers v. Cox-Rivers, 346 N.J. Super. 418 (App. Div. 2002); State v. Kettles, 345 N.J. Super. 466 (App. Div. 2001), certif. denied, 171 N.J. 443 (2002); State v. Tucker, 264 N.J. Super. 549 (App. Div. 1993), certif. denied, 135 N.J. 468 (1994); State v. Horton, 199 N.J. Super. 368 (App. Div. 1985), or to permit reconsideration of a defendant's motion to withdraw his plea, State v. Deutsch, 34 N.J. 190, 211 (1961). It is quite another under the same circumstances, to suppress evidence, and, as a practical matter in many cases, preclude trial at all. In other contexts, we have held that "the exclusionary rule applies only to evidence obtained in violation of the Fourth Amendment . . . or . . . the New Jersey Constitution," and not of a statutory violation, unless the violation "affects privacy rights that the Fourth Amendment and its New Jersey counterpart were designed to protect." State v. Hai Kim Nguyen, 419 N.J. Super. 413, 428 (App. Div.), certif. denied, 208 N.J. 339 (2011). Given our rejection of suppression in this case, even under Presley, we need not decide the appropriateness of a suppression remedy for a non-constitutional violation of judicial disqualification standards.
1.
Disqualification is governed by Court Rule, see Deutsch, supra, 34 N.J. at 209 (directing drafting of comprehensive rule on disqualification), the Code of Judicial Conduct, and administrative directives. Rule 1:12-1 states, in relevant part:
The judge of any court shall be disqualified on the court's own motion and shall not sit in any matter, if the judge
. . . .
(b) is by blood or marriage the first cousin of or is more closely related to any attorney in the action. This proscription shall extend to the partners, employers, employees or office associates of any such attorney except where the Chief Justice for good cause otherwise permits;
. . . .
(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.
A judge is also bound by the Code of Judicial Conduct. R. 1:14; R. 1:18. Canon 2 of the Code directs judges to "avoid impropriety and the appearance of impropriety in all activities." Canon 3(C) also addresses disqualification, stating:
C. Disqualification (see R. 1:12-1).
(1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party's lawyer or has personal knowledge of disputed evidentiary facts concerning the proceeding;
. . . .
(d) the judge or the judge's spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:
. . . .
(ii) is acting as, or is in the employ of or associated in the practice of law with, a lawyer in the proceeding;
. . . .
(iii) is known by the judge to have an interest that could be affected by the outcome of the proceeding . . . .However, in commentary following (C)(1)(b), the Code expressly acknowledges that lawyers in a governmental agency are not "necessarily" considered associated with other lawyers in the same agency.
Commentary: A lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this subsection; a judge formerly employed by a governmental agency, however, should disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such association.Certainly, a non-lawyer employed by a lawyer would be treated as indulgently.
Relying on Rule 1:12-1(b), we held that a Superior Court judge should have disqualified himself from a criminal trial when, two weeks before trial commenced, his son was hired as an assistant prosecutor in the same county. State v. Connolly, 120 N.J. Super. 511, 515 (App. Div.), certif. denied, 62 N.J. 88 (1972). The son had no role whatsoever in the case. Ibid. We held, however, the failure to disqualify was not a basis to reverse the conviction. Ibid.
Thereafter, the Supreme Court reinforced the holding in Connolly, supra, but, pursuant to the Chief Justice's power expressly noted in Rule 1:12-1(b), the Court established an exception where a judge's recusal would significantly interfere with management of the calendar.
(a) Criminal MattersThe directive has the force and effect of law. State v. McNamara, 212 N.J. Super. 102, 109 (App. Div. 1986), certif. denied, 108 N.J. 210 (1987).
[T]he Supreme Court is of the view that as a matter of general policy a judge may not sit in any criminal matter if his or her son or daughter or any member of the immediate family is associated with the Prosecutor's Office in the county in which the judge is sitting.
(b) Exceptions
The Chief Justice has discussed with the Supreme Court the question of granting an exception, as provided for in the rule, so as to permit a judge to sit in criminal cases notwithstanding that a relative (within the proscribed degree) is employed by the prosecutor's office.
This is to advise you that the Chief Justice is granting such an exception where the judge's disqualification creates undue problems for you in managing the calendar; provided the judge shall not sit in a case which the relative is handling or has been involved in and provided that the judge's relative is merely a member of the prosecutor's staff and is not the prosecutor.
[Administrative Directives #6-70, #1-72, #15-72 (April 24, 1973) (emphasis added).]
In view of the exception, the warrant judge may not have been required to recuse himself. On the one hand, we are unpersuaded by the State's argument that prosecutor's office detectives, and other non-lawyers, are not encompassed by "partners, employers, employees or office associates," R. 1:12-1(b), of an attorney, such as the prosecutor, appearing in a case. Particularly in light of the reference in the directive to a "relative . . . employed by the prosecutor's office," we conclude the Court contemplated the employees with significant authority in a prosecutor's office would be covered.
We do not address whether a relative employed in a clerical position would be treated similarly.
On the other hand, the warrant judge may have been permitted to sit, based on the Supreme Court's exception in cases where disqualification would create "undue problems . . . in managing the calendar . . . ." The directive does not define "undue problems," nor does it specify who determines that they exist. However, it is unclear how the warrant judge, who was the presiding judge of the Criminal Part, could have managed a criminal calendar at all if he were required to recuse himself "in any criminal matter if . . . [an immediate family member] is associated with the Prosecutor's Office in the county in which the judge is sitting." The warrant judge was assigned to sit in the Criminal Part in a vicinage consisting of a single county, and a single county prosecutor's office.
The record does not adequately reflect whether the warrant judge's relationship was disclosed before his assignment, although Judge Mellaci found that the warrant judge's brother's employment in the prosecutor's office was well-known in the vicinage. The warrant judge may have been assigned to his post with the understanding that he would fulfill his duties pursuant to the exception. If the judge's disqualification was not required, then we need not reach the multi-factor test set forth in Presley. Suppression would not be required because the judge would not have been required to recuse himself in the first place.
Neither are we persuaded that In re Advisory Opinion No. 7-11 compels a different result. Defendant argues that since the Court has barred a municipal court judge from sitting in a municipality where a relative serves as a police officer, a Superior Court judge must not be able to sit in a county where a relative serves as a prosecutor's office detective. However, as the Court's decision did not directly address or withdraw the directive quoted above, we presume that the exception for disqualifications that would create undue burdens on calendar management still applies. Even if it does not, we presume that the implied change in policy would be prospective in effect.
2.
Finally, even if the warrant judge were required to recuse himself from considering the warrant application, we are not persuaded that, viewing the totality of the circumstances, suppression of the evidence is required to preserve the integrity of the judicial process. Although the judge obviously knew his brother was a prosecutor's office detective, we presume he also knew that he headed a bureau other than the Narcotics Strike Force. There was no "evidence of actual partiality on the part of the judge," or any evidence that his relationship with his brother affected his decision. With respect to the "reasonableness of efforts made by the State and the judge to identify a conflict before judicial action [was] taken," we accept Judge Mellaci's finding that the sibling relationship was well-known. It is evident that neither the judge nor the State deemed it disqualifying. Furthermore, there was ample support for the warrant. All of these factors indicate that the integrity of the judiciary was not compromised, and suppression is not necessary to preserve public confidence in the judicial process.
We recognize that many of the Presley factors are geared to the case of a judge who was a former prosecutor. --------
Affirmed. The previously ordered stay of the sentence pending appeal is vacated, and bail pending appeal is revoked, effective three days from the release of this opinion. See R. 1:3-1. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION