STATE OF NEW JERSEY VS. CALVIN PRESLEY, ET AL.
A-4816-12T2
In State v. McCann, 391 N.J. Super. 542 (App. Div.
2007), we announced a prospective "bright-line rule" that
called for invalidating search warrants issued by a judge
who was bound to recuse himself or herself based on a prior
relationship. Upon being advised he had prosecuted one of
the defendants when he was an assistant prosecutor, the
trial judge recused himself. So, the question here is not
one of recusal but of remedy. Defendants here ask us to
apply McCann to the following facts: the judge prosecuted
only one of the defendants; no defendant alleges the judge
was biased or aware of the disqualifying facts when he
issued the warrants or that there was insufficient probable
cause for their issuance; and finally, the defendant
prosecuted by the judge withheld the disqualifying facts
while appearing before the judge on unrelated matters for
"strategic" reasons for over a year. We conclude that
McCann is distinguishable; the remedy sought by defendants
will not serve the interests of the Code of Judicial
Conduct; and the appropriate remedy should be determined by
what is "required to restore public confidence in the
integrity and impartiality of the proceedings, to resolve
the dispute in particular, and to promote generally the
administration of justice." DeNike v. Cupo, 196 N.J. 502,
519 (2008).
