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Date: 06-07-2016

Case Style: STATE OF NEW JERSEY VS. WILLY EMMANUEL

Case Number: A-4452-13T1

Judge: Jack Sabatino

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Grace H. Park, Acting Union County Prosecutor, Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor

Defendant's Attorney: Joseph E. Krakora, Public Defender, Elizabeth C. Jarit, Assistant Deputy Public Defender

Description: After a two-day jury trial, defendant Willy Emmanuel was
found guilty on all five counts of an indictment charging him
with third-degree possession of a controlled dangerous substance
(cocaine), N.J.S.A. 2C:35-10(a)(1) (count one); third-degree
possession of cocaine with intent to distribute, N.J.S.A. 2C:35
5(a)(1) and (b)(3) (count two); second-degree possession of
cocaine with intent to distribute within 500 feet of public
property, N.J.S.A. 2C:35-7.1 (count three); third-degree
distribution of cocaine, N.J.S.A. 2C:35-5(a)(1) and (b)(3)
(count four); and second-degree distribution within 500 feet of
public property, N.J.S.A. 2C:35-7.1 (count five). The trial
court sentenced defendant, who has a lengthy criminal record, to
an extended custodial term of fourteen years with a seven-year
parole disqualifier on count three, and a concurrent eight-year
term with a four-year parole disqualifier on count five. All
other counts merged.
On appeal, defendant principally argues that he is entitled
to a new trial because there are docket entries indicating that
the trial judge, a former assistant county prosecutor, may have
briefly participated in some manner in an unrelated criminal
case against him years earlier. Defendant further contends that
he was unduly prejudiced by certain allegedly improper comments
A-4452-13T1 3
during the State's closing arguments. Lastly, he asserts that
his sentence is excessive.
For the reasons that follow, we remand to the trial judge
for a hearing on the disqualification issue to attempt to
ascertain more definitively the nature of the judge's role in
the prior case. On remand, defendant shall have the burden of
proving that the judge, in her former capacity as an assistant
prosecutor, had "direct involvement" in that earlier matter,
thereby triggering the judge's duty to disqualify herself under
the Judiciary's applicable Administrative Directive. If
defendant fails to sustain that burden, his conviction and
sentence shall remain intact. We also reject defendant's
separate arguments claiming prosecutorial misconduct and an
excessive sentence.
I.
We need not say much about the facts that gave rise to the
present case. On the afternoon of July 25, 2012, two police
officers who were conducting surveillance in Jefferson Park in
Elizabeth observed a man, later identified as defendant, get out
of a car and remove an item from its trunk. Defendant walked
into the park and placed the item at the base of a tree. He was
approached by two individuals, conversed with them briefly, and
then returned to the tree, picking up what appeared to be a
A-4452-13T1 4
resealable plastic bag filled with smaller baggies. The
officers then saw defendant walk back to the two individuals,
and hand each of them one of the retrieved items. Both persons
handed defendant money in exchange.
The police arrested defendant and the two apparent
customers. The customers each had in their possession a small
baggie containing cocaine. In addition, the police found seven
other small bags of cocaine underneath some loose grass near the
tree where defendant had stashed the larger plastic bag. The
substances within the bags tested positive for cocaine, and
defendant stipulated to the admission of the incriminating lab
results.
At trial, the State presented testimony from one of the
surveillance officers and an arresting officer, along with
photographs taken of the crime scene. The State also called,
without objection, an expert on narcotics packaging and
distribution. Defendant did not testify, nor did he present any
witnesses.
On appeal, defendant raises the following points in his
brief and reply brief for our consideration:
POINT I
BECAUSE THE JUDGE HAD PROSECUTED EMMANUEL IN A PRIOR CRIMINAL CASE, SHE WAS MANDATORILY DISQUALIFIED FROM PRESIDING OVER HIS TRIAL,
A-4452-13T1 5
REQUIRING REVERSAL OF HIS CONVICTIONS. (Not Raised Below).
POINT II
THE PROSECUTOR'S IMPROPER COMMENTS DURING SUMMATION DENIED EMMANUEL DUE PROCESS AND A FAIR TRIAL. (Partially Raised Below).
POINT III
BECAUSE THE COURT FAILED TO FOLLOW THE SENTENCING PROCEDURES ARTICULATED IN STATE V. DUNBAR WHEN IMPOSING A SENTENCE IN THE EXTENDED TERM RANGE AND IMPOSING A PERIOD OF PAROLE INELIGIBILITY, A REMAND IS REQUIRED FOR RESENTENCING.
REPLY POINT I
THE STATE'S RESPONSE OVERLOOKS STATE V. TUCKER AND MISUNDERSTANDS THE RATIONALE BEHIND THE MANDATORY DISQUALIFICATION RULE.
II.
The main issue for our consideration is whether the trial
judge should have disqualified herself from this matter because
of her prior activities as an assistant prosecutor, a position
in which she apparently supervised other assistants in the
office. The issue arose, sua sponte, during a pretrial
conference. Mindful of her former position, the judge requested
that her secretary check the criminal docketing system (known as
"Promis Gavel") to look for any prior criminal cases in Union
County involving defendant in which the judge might have been
involved as an assistant prosecutor.
A-4452-13T1 6
The secretary located at least one entry in Promis Gavel1
that showed, assuming it is accurate, the judge had some
unspecified prior involvement in a criminal prosecution against
defendant in the early 2000s. The judge described this
discovery in open court as follows, before the present trial
commenced:
Also, one thing that I had mentioned to counsel in chambers, while I actually asked my secretary to look into another case, because having been at the Prosecutor's Office for a period of time, there have been some cases that have come up which I have a conflict in because I handled certain defendants' cases in the past. And while researching a case that really was not at all Mr. Emmanuel's case, my secretary printed out for me a part of the Promis Gavel . . . that indicates that I somehow had some connection to a case back in 2002
1 Pursuant to N.J.R.E. 201(b)(4), we have attempted to review and take judicial notice of the pertinent docket entries in Promis Gavel. The entries we have located contain two references to the judge in Case Number 2003387 (Union County Indictment No. 03-11-1187), in which she is listed on two dates as "Prosecutor." Specifically, those entries relate to what appears to be a post-conviction motion by defendant to be admitted to the Drug Court program. The first reference consists of a July 28, 2006 entry in which the motion was "carried," followed by an August 24, 2006 entry when that motion was again "carried," apparently on the previous day. It appears that the motion was eventually withdrawn. There are numerous other docket entries preceding and following these two entries, all of which list a different assistant prosecutor as appearing for the State. As we note, infra, we do not assume that our own review of Promis Gavel is complete or dispositive. We also are unsure how or why the judge's reference to "a case back in 2002" relates to these 2006 entries, except insofar as the indictment in that case was issued in 2002.
A-4452-13T1 7
[sic] involving Mr. Emmanuel, and I advised counsel . . . [that] I don't have any recollection of this case at all . . . . And most likely, because I was trial supervisor, I may have stood in for an arraignment. It could have been a pre-trial on behalf of one of the trial team assistant prosecutors.
[(Emphasis added).]
Defendant stated under oath that he likewise had no
recollection of the judge being involved, in her former position
as a prosecutor, in any prior matter concerning him. His trial
counsel indicated on the record that defendant understood he
"ha[d] a right to object," but that he had chosen to make what
was termed "a full waiver" of the potential conflict of
interest. Ibid. The trial then proceeded without the
disqualification issue being mentioned again.
In now revisiting this subject on appeal, defendant argues
that the judge was disqualified as a matter of law from
presiding over his trial because of her prior position as an
assistant prosecutor in a case against him. He further contends
that the conflict is non-waivable. He maintains that his
personal acquiescence in the judge's participation before the
trial started does not ameliorate the need to assure, in the
public interest, that judges should not sit on cases in which
their impartiality might be reasonably questioned.
A-4452-13T1 8
The State responds that there were insufficient grounds to
require the judge's disqualification here. Moreover, the State
asserts that defendant should not be allowed to revive this
subject on appeal, having acceded to the judge's involvement and
having failed to insist when the issue was raised on a more in
depth inquiry into her actual role in the prior prosecution.
Several well-established principles guide the
disqualification analysis. As stated in Canon 3(C)(1) of the
Code of Judicial Conduct, "[a] judge should disqualify . . .
herself in a proceeding in which the judge's impartiality might
reasonably be questioned[.]" The rules of judicial
disqualification are important for "maintain[ing] public
confidence in the integrity of the judicial process, which in
turn depends on a belief in the impartiality of judicial
decision making." State v. Kettles, 345 N.J. Super. 466, 469-70
(App. Div. 2001) (quoting United States v. Nobel, 696 F.2d 231,
235 (3d Cir. 1982)), certif. denied, 171 N.J. 443 (2002).
We are mindful there are certain circumstances that require
a judge to recuse herself, regardless of whether any true
conflict of interest or impropriety exists. Our court rules
specify that a judge must disqualify herself on the court's own
motion if she "has been [an] attorney of record or counsel in
the action[.]" R. 1:12-1(c) (emphasis added). Similarly, by
A-4452-13T1 9
statute, a judge must recuse herself upon motion by one of the
parties if she "[h]as been [an] attorney of record or counsel
for a party" in the case in past matters. N.J.S.A. 2A:15-49(b).
This court has clarified a judge's obligation to disqualify
herself in various factual scenarios. In criminal trials, a
judge must recuse herself on her own motion if she was
sufficiently personally involved in the prosecution of the same
defendant in a past matter. See State v. Presley, 436 N.J.
Super. 440, 448 (App. Div. 2014) (agreeing with the trial judge
that he had a "conflict that required his disqualification"
because the judge had previously prosecuted the same individual
over seven years ago in an unrelated matter); State v. Tucker,
264 N.J. Super. 549, 554-55 (App. Div. 1993) (reversing a
conviction because of the judge's failure to disqualify herself,
noting that a trial judge "not only has the right but . . . the
obligation to recuse himself on his own motion" after the trial
judge in the case denied a motion for recusal because the judge
was personally involved in two prior unrelated grand jury
proceedings against the defendant), certif. denied, 135 N.J. 468
(1994).
The judge's inability to recall the defendant or the prior
prosecution is not dispositive to this analysis. Tucker, supra,
264 N.J. Super. at 553, 555 (reversing conviction despite the
A-4452-13T1 10
trial judge stating he did not remember defendant or the prior
cases he was involved in as a prosecutor five years ago). Nor
does it matter that the defendant "waived" any objection to the
judge's continued involvement at trial. Kettles, supra, 345
N.J. Super. at 468, 469-71 (reversing a conviction and remanding
for a new trial despite waiver by the defendant because the
trial judge had been personally involved in an unrelated grand
jury proceeding against the same defendant as a prosecutor).
A judge's obligation to recuse herself when the
circumstances dictate such action was further amplified in the
civil context in Rivers v. Cox-Rivers, 346 N.J. Super. 418, 421
22 (App. Div. 2002), certif. denied, 186 N.J. 363 (2006). In
that case, this court applied what we termed a "non-waivable"
and "bright-line rule" that requires judges to disqualify
themselves "where [the judge] has previously represented one of
the parties in a matter before him against the other[.]" Id. at
421. The panel reasoned that the "public policy imperatives"
underpinning the principles espoused in cases such as Kettles
and Tucker applied equally in the civil context. Id. at 421-22.
Rivers involved a divorce action in which the trial judge had
represented the plaintiff as a lawyer fourteen years earlier in
a marital separation dispute. Id. at 420.
A-4452-13T1 11
That said, a judge's merely titular or tangential role as
an attorney in a prior prosecution involving the same defendant
does not trigger an automatic duty to disqualify. Rather, the
applicable test is whether the judge had "direct involvement" in
the earlier prosecution, a standard that is set forth in the
following Directive of the Administrative Office of the Courts:
The Supreme Court has established the following guidelines concerning judicial disqualification in criminal cases, where the judge previously served as prosecutor, public defender, or as an assistant in one of those offices:
1. Except in extraordinary circumstances, a judge should disqualify himself or herself in a criminal matter which was pending in his or her office when he or she was the prosecutor or county public defender, whether or not he or she actively participated in the investigation, prosecution, or defense of the case, or had actual knowledge of it.
The reason for this is that as the prior head of either office, the judge would have had the overall responsibility for the conduct of the case.
2. A judge should disqualify himself or herself from hearing a criminal matter involving a defendant who the judge, in his or her previous capacity, had personally prosecuted or defended, or had represented in a civil matter in the past.
A-4452-13T1 12
The reason for this is that the appearance of judicial impartiality must be preserved.
3. A judge need not disqualify himself or herself from hearing a criminal matter which was pending at the time when the judge served as an assistant prosecutor or assistant public defender, if the judge had no direct involvement with the matter.
As an assistant, the judge would not have been charged with the overall responsibility for the conduct of the case; disqualification is therefore unnecessary absent direct involvement in the investigation, review or trial of the matter in question.
[Disqualification of Judges in Criminal Matters, Administrative Directive (Sept. 19, 1983) (emphasis added).]
The Supreme Court applied this Directive in State v.
Harris, 181 N.J. 391, 510-11 (2004), cert. denied, 545 U.S.
1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005), and concluded
that a trial judge presiding over a defendant's petition for
post-conviction relief ("PCR") was not required to recuse
himself merely because his signature appeared on an indictment
of defendant while the judge had served as the Acting County
Prosecutor. There were initials after the signature, suggesting
that another person in the prosecutor's office had actually
signed the document on the Acting Prosecutor's behalf.
A-4452-13T1 13
Moreover, the judge had no personal recollection of the case,
which had been prosecuted over twenty-five years earlier. In
those circumstances the Supreme Court found "no reasonable basis
for defendant, counsel, or the public to question the [judge's]
impartiality[.]" Id. at 511.
Here, the record is incomplete and unenlightening
concerning why the judge's name appears in at least two docket
entries for one of defendant's prior indictments. In both of
those 2006 docket entries, it appears that the court made no
substantive rulings on those dates, and that defendant's post
trial motion to be admitted into Drug Court was simply postponed
to a later date. In fact, the records suggest that the motion
was eventually withdrawn. It is entirely conceivable that the
then-assistant prosecutor (now the judge) had no role of
consequence in the case on those two particular days.
This may well be a situation in which the assistant
prosecutor's name was inserted into the docket entry by staff
provisionally or for tracking purposes, until a responsible
attorney within the office to address the motion was identified.
That supposition is consistent with the fact that defendant had
already pled guilty and been sentenced in that case in 2004, and
his file was presumably closed until his 2006 motion.
Conversely, it is also possible that the assistant prosecutor
A-4452-13T1 14
had more significant involvement, such as authoring a brief on
the motion, before it was ultimately withdrawn. In addition, as
we have already mentioned, there may be other pertinent docket
entries in this or other cases involving defendant that have yet
to be clarified or uncovered.
We agree with defendant that the controlling legal
authority renders a conflict or appearance of impropriety – if
one exists at all – non-waivable. See Rivers, supra, 346 N.J.
Super. at 421-22. Even so, we recognize that defendant did not
press the issue after the judge had conscientiously brought the
subject to everyone's attention before the trial started.
Given this chronology, we conclude that the
disqualification issue should be remanded for further inquiry
and a hearing, in an effort to explore more deeply and
definitively the judge's actual role in defendant's prior
prosecution(s), with a specific focus on whether the judge had
any "direct involvement" in any of those cases within the
meaning of the Directive. In light of defendant's failure to
assert disqualification until now, we conclude it most
appropriate for him to bear the burden of persuasion on remand
on the question of whether the judge had a disqualifying "direct
involvement" in his prior criminal case or cases. If the
evidence of such involvement is unobtainable or inconclusive, or
A-4452-13T1 15
the proofs on the subject are in equipoise, then defendant has
failed to meet his burden and his conviction and sentence shall
not be set aside on this basis. See, e.g., State v. Morton, 155
N.J. 383, 421 (1998) (by analogy, imposing upon a criminal
appellant the burden of establishing "plain error" on an issue
he initially failed to raise below), cert. denied, 532 U.S. 931,
121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
Consistent with general principles, the trial judge herself
shall preside over the remand proceeding and determine if any
further information uncovered of her prior potential involvement
compels disqualification. Generally, "[t]he disqualification
decision is initially left to the discretion of the trial
court." State v. Marshall, 148 N.J. 89, 275-76 (1997), cert.
denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997).
"The trial judge is in as good a position as any to evaluate a
claim that an action has the appearance of impropriety."
Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J. Super. 199,
221 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996).
Because defense counsel and other assistant prosecutors are
identified in some of the related Promis Gavel docket entries,
the extent of the judge's prior involvement might be readily
revealed through correspondence or informal discussion. In any
event, we remand this issue to the trial court for further
A-4452-13T1 16
examination. In the meantime, defendant's conviction and
sentence shall remain unaltered. In taking this necessary step,
we do note that, by all indications, the trial judge presided
over the case well and fairly.
III.
We discern no merit to the remainder of defendant's
arguments. R. 2:11-3(e)(2). His contention that the prosecutor
made four improper comments during summation – only one of which
was objected to at the time – is rejected, as the comments
appear to us to be within the bounds of fair, robust advocacy.
The comments did not deprive defendant of a fair trial. We are
unpersuaded that the three unobjected-to remarks were "clearly
and unmistakenly improper" or that they "substantially
prejudiced defendant's fundamental right to have a jury fairly
evaluate the merits of his . . . defense." State v. Ingram, 196
N.J. 23, 43 (2008).
The fourth comment, which did draw a timely objection, did
not unduly infringe upon defendant's privilege against self
incrimination. In any event, the problem was sufficiently dealt
with by the court through a prompt curative instruction, which
we presume the jury heeded. State v. Burns, 192 N.J. 312, 335
(2007). We have considerable doubts that the jurors were led
astray in this case by the prosecutor's summation, particularly
A-4452-13T1 17
given the strength of the State's proofs establishing that
defendant was caught by two police officers, in essence, "red
handed," in the commission of acts of cocaine distribution.
Lastly, we have no difficulty upholding defendant's
extended-term sentence and all of its facets. Defendant had a
serious record of five prior adult convictions, including
multiple drug crimes and unlawful possession of a handgun. We
are unpersuaded that his past convictions were impermissibly
"double-counted" at sentencing in violation of State v. Dunbar,
108 N.J. 80, 91-92 (1987), for purposes of the court's extended
term analysis. Nor did the judge manifestly misidentify or
unfairly weigh the pertinent aggravating and mitigating factors.

Outcome: We will not second-guess the trial court's exercise of its wide discretion in this sentencing context. Affirmed in part and remanded in part. We do not retain jurisdiction.

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