RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6175-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

L.A.,

Defendant-Appellant.

Submitted May 21, 2013 – Decided

Before Judges Messano, Lihotz and Ostrer.

On appeal from the Superior Court of New 

Jersey, Law Division, Middlesex County, 

Indictment No. 01-10-1105.

Joseph E. Krakora, Public Defender, attorney 

for appellant (Steven M. Gilson, Designated 

Counsel, on the brief).

Andrew C. Carey, Acting Middlesex County 

Prosecutor, attorney for respondent (Brian 

D. Gillet, Special Deputy Attorney General/ 

Acting Assistant Prosecutor, of counsel and 

on the brief).

The opinion of the court was delivered by

OSTRER, J.A.D.

Defendant appeals from the trial court's denial, after 

remand and an evidentiary hearing, of his petition for postconviction relief (PCR). See State v. L.A., No. A-4279-07 (App. 

APPROVED FOR PUBLICATION

October 8, 2013

APPELLATE DIVISION

October 8, 2013
2 A-6175-10T4

Div. May 24, 2010) (L.A. II). The petition was based largely on 

his trial counsel's failure to interview defendant's wife, D.A., 

and to call her as an exculpatory witness. We remanded for an 

evidentiary hearing, at which D.A. would be able to testify, to 

enable the court to decide whether the failure to call her at 

defendant's trial constituted ineffective assistance of counsel. 

Id. at 7. On remand, the trial court found defendant did not 

meet his burden to prove he was prejudiced by his trial 

counsel's deficient performance. On appeal, defendant argues 

the court erred. Having considered the legal arguments in light 

of the record and applicable law, we agree and reverse.

I.

A Middlesex County jury convicted defendant in 2003 of 

first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; 

second-degree endangering the welfare of a child, N.J.S.A.

2C:24-4a; and third-degree aggravated sexual contact, N.J.S.A.

2C:14-3a. The victim was his daughter L.N., who was fifteen 

years old at the time. The indictment charged that each offense 

occurred on "multiple and diverse dates" between November 1, 

2000 and February 28, 2001. The trial evidence pertained to 

three separate incidents: one in November 2000 at defendant's 

home in Newark; another at a motel in December 2000 in 

Sayreville; and a third in defendant's car in February 2001 in 
3 A-6175-10T4

Eatontown.1 However, the jury verdict did not specify which, if 

not all, of the incidents it found to have occurred. After 

merger, defendant received a fifteen-year sentence on the firstdegree count, subject to Megan's Law registration and lifetime 

community supervision upon release. N.J.S.A. 2C:7-1 to -23. We 

affirmed the conviction on direct appeal. State v. L.A., No. A4071-03 (App. Div. March 17, 2006) (L.A. I), certif. denied, 187 

N.J. 81 (2007).

We begin with a review of the trial evidence. The jury 

heard testimony from a police officer, L.N., her mother B.N.,

and defendant. L.N. lived with B.N. in Monmouth County. 

Defendant lived with his wife, D.A., and a son, L.H., in Newark. 

During the relevant period, defendant exercised parenting time 

with L.N., often picking her up and taking her to his home.

L.N. testified that her visitation with defendant was one 

or two weekends a month before November 2000 and nearly every 

weekend thereafter. She also spent part of each summer and some 

of her school vacations with him at his residence in Newark. 

L.N. had a close relationship with L.H., but she did not get

along with D.A. 

 

1 The indictment alleged the aggravated sexual assault occurred 

in Newark "and/or" Sayreville; and the other offenses occurred 

in Newark, Sayreville, "and/or" Eatontown.
4 A-6175-10T4

L.N. was a freshman in her local high school, but before 

the end of 2000, transferred to an alternative school. L.N. 

testified the behavioral problems that precipitated the transfer 

resulted from her father's sexual assault. 

L.N. testified that on a Sunday in November 2000, defendant 

picked her up from her home and took her to see a movie, and 

then to buy a coat. Defendant asked if she wanted to go to his 

residence to see D.A. and L.H. L.N. replied that she would go 

if they were home, so they went. The residence was unoccupied 

when they arrived, and defendant suggested waiting a few minutes 

before returning L.N. home. L.N. accordingly stayed in the 

living room for a while and then went into L.H.'s bedroom to 

sleep. She awakened to discover defendant unbuttoning her pants 

and pulling them down. He fondled her breasts and vagina and 

inserted his fingers. She cried and asked what he was doing, 

but he did not answer. After about twenty minutes, L.N. got 

dressed, and told defendant that she was "ready to go." He took 

her home and gave her $60 or $75 in cash. 

On Sunday, December 17, 2000, defendant bought L.N. a pair 

of boots after visiting various shopping malls in Monmouth and 

Middlesex Counties. In evidence was a sales receipt with a time 

stamp of 2:39 p.m. They then ate fast food in the car. L.N. 

testified that she told defendant she was ready to go home, but 
5 A-6175-10T4

defendant said he did not "feel like going that way[,]" and also 

declined her suggestion to go to his house, adding he did not 

want to disturb D.A. or L.H. He decided instead to go to a 

motel in South Amboy, in order to watch the football game that 

he had mentioned to her earlier. The motel was just off the 

Garden State Parkway, which was the road that defendant usually 

traveled for his visitations with L.N. The registration form 

listed defendant's name, address, and license plate number, 

along with a check-in time of 3:15 p.m. on December 17, 2000, 

and a check-out time of 7:46 a.m. the following day. 

L.N. testified that after they entered the room, she lay 

down and slept. She did not notice whether the football game 

had started. She awoke to find that defendant had pulled her 

pants partially down. He penetrated her vagina with his fingers 

and he touched her breasts. Despite her requests that he stop, 

he turned her face down on the bed and put his penis in her 

vagina. Her crying ultimately stopped the assault. He got 

dressed, she said she was "ready to go," and he took her home 

sometime after nightfall. Defendant gave L.N. between $100 and 

$160.

L.N. did not want to continue the regular visitations, but 

B.N. encouraged her because she thought defendant was trying to 

be a good father. On another Sunday, in February 2001, 
6 A-6175-10T4

defendant picked up L.N. to take her to the movies. While they 

were in the car, he fondled her breasts and her vagina through 

her clothes. They then saw the movie and he took her home. 

Defendant also bought L.N. sneakers that day.

At some point in April 2001, L.N. and B.N. were discussing 

L.N.'s behavior at school and at home. B.N. asked her why she 

was acting withdrawn and disagreeable. L.N. did not answer, but 

when B.N. said she would call defendant, L.N. told her that he 

was "part of the reason" for her behavior. L.N. then mentioned 

the sexual assaults. B.N. called defendant and then took L.N. 

to the Sayreville police station to give a statement. 

L.N. further testified that, before the November 2000 

incident, she always had to initiate a visitation with defendant 

and she had to "beg" for things that she needed, although her 

father carried significant amounts of cash and drove a Lincoln. 

Her visitations with defendant had become infrequent during the 

year or two preceding the November 2000 incident, but 

thereafter, he called her and saw her frequently and readily 

gave her money and other items. 

Next, B.N. testified. She described her relationship with 

defendant. She stated it lasted ten years, and continued, on 

and off, until 1996. Thus, it existed for a time while 

defendant was married to D.A. As defense counsel probed the 
7 A-6175-10T4

details of B.N.'s past relationship with defendant, B.N. 

disclosed that "somewhere in there he went to rehab and to 

jail." 

B.N. testified that defendant's relationship with L.N. was 

not close before November 2000, and he did not support her 

materially or emotionally. However, in November 2000, defendant 

began calling L.N. "a little more," with some calls initiated by 

him and some by her. That was when L.N. began returning from 

visitations with clothes, sneakers, or money that defendant 

provided. B.N. said that L.N. did not have problems with her or 

in school before November 2000 and that she got good grades. 

However, after November 2000, L.N.'s grades suffered, and her 

behavior deteriorated. 

Defendant testified on his own behalf. He explained that 

when L.N. was eleven years old, he established a relationship 

with her that grew to include regular visitation. He testified 

that L.N. had a contentious relationship with his wife. He also 

recalled that L.N. had problems in school before the alleged 

incident, as he had spoken to school officials about his 

daughter's difficulties. 

Defendant said that he did not expect a visitation on 

December 17, 2000, because L.N. had not called him in advance to 

confirm it. She nonetheless called that morning, and he picked 
8 A-6175-10T4

her up. He confirmed that he took her to three shopping centers 

to find the pair of boots that she wanted and took her to 

McDonald's. She did not want to go home, so he mentioned his 

desire to watch the football game. The motel was close to the 

Garden State Parkway, so he went there. He watched the 

remainder of the game while she slept. He denied touching her 

while she was asleep or doing anything inappropriate. 

The game ended around nightfall, approximately two to three 

hours after their arrival at the motel, and defendant returned 

L.N. to her home. He then went back to the motel to see another 

football game that was scheduled to start at 8:35 p.m., and he 

stayed the night.

When asked about the November 2000 and February 2001 

incidents, defendant denied L.N.'s allegations. He said that he 

did not comply with all of L.N.'s requests for gifts or money, 

and that he maintained that practice in 2000 and 2001. When 

asked why he did not take L.N. to a sports bar instead of a 

motel in order to watch the football game, he replied that he 

had stopped drinking since achieving sobriety and avoided bars. 

Defendant recalled buying L.N. a coat on a cold day in late 

2000 or early 2001 and then taking her to his home, but he was 

unsure of the date or month. He was unsure whether they saw a 

movie that day, because on visitation days he tried to do 
9 A-6175-10T4

whatever she wanted to do. He recalled taking her to his home 

in Newark, and finding D.A. and L.H. there when he arrived with 

L.N. On cross-examination, the State highlighted defendant's 

claim that D.A. and L.H. were present when defendant and L.N. 

returned to the Newark home after buying her coat. Defendant 

did not remember whether he gave L.N. money after that 

visitation, which he sometimes did when he believed she needed 

it. 

After a pretrial Sands2 hearing, the court denied, on 

remoteness grounds, the State's application to impeach defendant 

with prior drug-related convictions. Nonetheless, in view of 

B.N.'s disclosure, defense counsel elicited further details from 

defendant about the length of his incarceration. No instruction 

was requested or delivered regarding the jury's appropriate use 

of the evidence of defendant's incarceration. Defense counsel 

also elicited that defendant owed substantial child support and 

paid only sporadically. 

Defense counsel attempted to call D.A. at trial, but the 

court barred him from doing so because counsel failed to 

disclose her as a potential witness until after jury selection. 

Counsel argued that D.A. would testify that L.N. had behavioral 

problems before the alleged assaults began. Counsel represented 

 

2 State v. Sands, 76 N.J. 127 (1978). 
10 A-6175-10T4

that D.A. had been ill and unavailable to him. On direct 

appeal, we rejected defendant's argument that the trial judge 

erred in barring D.A. from testifying. L.A. I, supra, slip op. 

at 6.

In support of his petition for PCR, defendant asserted his 

trial attorney was ineffective by failing to interview D.A. or 

L.H. in advance of trial, and by failing to prepare to call them 

as witnesses. D.A. certified she was available to be 

interviewed before trial and counsel falsely stated to the court 

she was not in order to excuse his own neglect. In addition to 

discussing L.N.'s prior behavioral issues, D.A. would have 

testified that the assault in November 2000 could not have 

occurred, because she was present when L.N. returned to the home 

with her new coat. Defendant argued that D.A.'s testimony would 

have generally undermined L.N.'s credibility, and specifically 

challenged her version of the events of November 2000. 

Defendant also asserted that his attorney was under the 

influence of narcotics during the trial, and behaved 

erratically. 

The PCR petition was heard by a new judge. He denied the 

petition without an evidentiary hearing in an oral decision on 

November 29, 2007. As we previously noted: "[T]he PCR judge 

found that defendant had satisfied the first prong of the 
11 A-6175-10T4

Strickland test, namely that counsel was 'deficient' in failing 

to call [D.A.] as a witness because her testimony 'would have 

been helpful to put [L.N.]'s credibility in issue . . . .'" 

L.A. II, supra, slip op. at 7. However, the judge also found no 

prejudice, stating: "Sure, it might have been error not to call 

[D.A.] but that is just one of three incidents . . . that 

defendant allegedly was involved with the victim and that would 

have been enough to convict him also." We remanded after 

concluding the court erred "in failing to find that defendant 

had satisfied the second prong of the test for establishing a 

prima facie claim of ineffective assistance." Ibid. 

Unbeknownst to us in our review of the first PCR appeal, 

D.A. testified in September 2007 regarding trial counsel's 

failure to interview her. The hearing was conducted to preserve 

her testimony because she was in poor health. She was subject 

to cross-examination. However, neither the parties nor the 

court referenced the testimony, and a transcript was not 

provided to us on appeal. 

On remand, the court considered the transcript of D.A.'s

2007 testimony, and made credibility findings based thereon. 

She was hospitalized and too ill to testify on remand. The 

court also heard testimony from defendant, his trial attorney, 

and L.H.
12 A-6175-10T4

D.A. testified in 2007 that L.N. exhibited behavioral 

problems before the alleged assaults, including school 

suspensions; she disputed L.N.'s claim that defendant's 

visitation and support of L.N. was sporadic before the attacks; 

she described incidents in which L.N.'s veracity was questioned; 

and she stated that she and L.H. were present the day L.N. 

visited the home with her new coat.

D.A. described her relationship with L.N. as a stepmotherstepdaughter relationship, which included what she regarded as 

the expected issues and conflicts. She also stated that there 

was a gradual change in L.N.'s behavior. She testified that 

L.N. often blatantly lied about incidents at defendant's house. 

She cited one occasion when L.N. was disruptive and 

confrontational in the presence of relatives. Further, she 

maintained L.N. had problems at school before November 2000, 

some of which resulted in suspensions. Reinstatement required a 

parent to go to the school, and B.N. asked defendant to make the 

visits because she was too tired. The culmination of the 

suspensions was L.N.'s expulsion and enrollment in an 

alternative school. Also, before November 2000, B.N. asked 

defendant to talk to L.N. about problems that L.N. was having 

with her and "in the community." 
13 A-6175-10T4

D.A. remembered the day in November 2000 when defendant 

bought L.N. a coat, in part because she recalled making a dinner 

that included sweet potatoes, and L.N. chided her for failing to 

remember that she disliked them. D.A. related that she, 

defendant, and his son occupied only the first floor of the 

house. It had two bedrooms at the time because the front porch 

had not yet been enclosed. At some point in the early evening, 

when she was in the master bedroom watching television, L.N. 

knocked on the bedroom door and asked if she wanted to see the 

coat that defendant had bought for her.

D.A. then saw L.N. go to the second bedroom to show the 

coat to L.H. He stayed there to continue playing his video 

game, while L.N. hung up the coat and went to the living room to 

watch television. By that time, D.A. had begun to prepare 

dinner. She was in the house the entire time that L.N. was 

there that day, and she insisted that it would have been 

impossible for anyone to commit a sexual assault anywhere in the 

home without her being aware of it. The court observed from a 

diagram that the bedroom doors were opposite one another, 

affording a clear view from one into the other, and that the 

bedrooms were separated only by the small bathroom between them 

and the short hallway between their doors.
14 A-6175-10T4

D.A. also explained that in the more than two years between 

arrest and trial, she repeatedly asked defendant why defense 

counsel did not interview her about the case. Eventually, D.A. 

stated, her husband told her that trial counsel believed the 

case involved only L.N. and him — one person's word against the 

other. However, D.A. explained that on the first day of trial 

testimony, she had the opportunity to speak to defense counsel 

and he admitted that he was surprised at how articulate she was. 

He then attempted, unsuccessfully, to add her to the witness 

list by misrepresenting why he had failed to name her as a 

witness earlier.

L.H. also testified that he was present when L.N. arrived 

with their father at the Newark home, after purchasing her new 

winter coat. He stated L.N. entered his bedroom to show him the 

coat, while defendant went into the other bedroom with his wife, 

and that at no point were L.N. and defendant both in his 

bedroom. 

Defendant supplemented his trial testimony, to cover areas 

that his trial attorney discouraged him from mentioning. He 

stated that he gambled on football, and participated in a 

betting pool at his barber shop. His gambling interest was the 

reason he was so intent upon seeing the football games on 

December 17, 2000. Defendant also testified about his trial 
15 A-6175-10T4

attorney's erratic behavior; his mood swings; and his lack of 

communication and preparation. 

Defendant's trial counsel conceded he was negligent in not 

interviewing defendant's son and wife. He admitted that he was 

a heavy user of heroin, and could not be certain whether it 

affected his performance. He stated that he was disbarred after 

defendant's trial. He explained that he failed to perform legal 

services for clients, but kept their retainers. 

The judge initially found D.A. to be a credible witness; 

however, following his review, he denied relief. Regarding 

D.A., the judge stated:

I'm looking at her composure on the stand 

and I'm starting to think in my mind, would 

she be a credible witness in the eyes of the 

jury, and what would they start thinking 

about? Is she telling them the truth 

because that is the truth or is she telling

the truth because she's telling them — is 

she saying what she's saying because she's 

the defendant's wife and she's an interested 

witness, and I want to make it real clear, I 

really found her credible. I think this is 

what made this case so hard.

The judge then appeared to conclude that D.A.'s testimony would 

have changed the result of the trial, stating:

I need to make a decision, and this is 

the decision or the issue. Is there a 

reasonable probability that if her testimony 

had been heard by the jury that the outcome 

of the trial would have been different? 

Like I said, I found her to be credible. 

She is sure to provide exculpatory testimony 
16 A-6175-10T4

with regard to one of the three alleged 

incidences and also to generally discredit 

[L.N.], if allowed to introduce testimony as 

to her problematic behavior in school, and 

this is the struggle that I have.

Assuming that the jury finds her 

credible and assuming that they believe that 

the incident at home didn't happen, and that 

[L.N.] was having problems at school, was 

there still sufficient evidence to uphold 

the conviction on the other two incidences? 

I don't know. I don't believe so. I don't 

believe so.

However, the judge denied PCR, concluding D.A.'s testimony would 

not have altered the final outcome. He reasoned: 

When I look at that question . . . I 

can't answer that in the affirmative, that 

there's a reasonable probability that the 

outcome would have been different, not when 

there were other incidences that were part 

of the case and it's obvious from the 

verdict that they found [L.N.] to be 

credible. So, for those reasons, the 

petition is denied, petition for postconviction relief is denied.

The court also denied a motion for reconsideration. In a 

written decision, the court concluded that a jury would likely 

find L.N. more credible than D.A. 

I found [D.A.] generally credible, but 

I do not believe that her testimony was 

sufficiently credible to bring the 

truthfulness of [L.N.'s] testimony into 

question. Had [D.A.] been placed before a 

jury to testify, the jury would likely have 

identified her as an interested witness, as 

Defendant's wife, and would weigh her 

testimony as such. Credibility 

determinations require many factors to be 
17 A-6175-10T4

taken into consideration, and to say I find 

a person generally credible, does not mean I 

think they are incapable of telling an 

untruth, or that I necessarily believe 

everything they say happened as they 

remember it. When juries are instructed 

regarding credibility, they are taught that 

they can believe all of a witness's 

testimony, some of the testimony, or none of 

it. [D.A.] was an interested witness. The 

day in question was not particularly 

notable, yet [D.A.] supposedly remembered 

every detail. I do not believe that it is 

reasonably probable that a jury would have 

heard [D.A.'s] testimony, weighed it against 

[L.N.'s], and found [D.A.] to be more 

credible than [L.N.]. I believe that it is 

more than reasonably probable that the 

opposite would have happened, that [L.N.] 

would have been found to be the more 

credible of the two and that [D.A.'s] 

testimony would have been largely 

discredited by her status as Defendant's 

wife.

This appeal followed. Challenging the judge's conclusion 

that it was not reasonably probable D.A.'s testimony would have 

altered the jury's verdict, defendant argues:

DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE 

TO INEFFECTIVE ASSISTANCE OF COUNSEL, IN 

THAT TRIAL COUNSEL FAILED TO HAVE 

DEFENDANT'S WIFE TESTIFY AS AN EXCULPATORY 

WITNESS.

II.

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 made errors so serious that he or she 
18 A-6175-10T4

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); State v. 

Preciose, 129 N.J. 451, 459 (1992) (reciting preponderance of 

the evidence standard of proof); State v. Fritz, 105 N.J. 42, 58 

(1987) (adopting Strickland standard). We have already 

determined that defendant's trial counsel's performance was 

deficient. L.A. II, supra, slip op. at 7. Accordingly, our 

focus here is whether defendant satisfied Strickland's second 

prejudice prong.

In discussing what constitutes prejudice to a defendant, 

the Strickland Court reasoned: "The result of a proceeding can 

be rendered unreliable, and hence the proceeding itself unfair, 

even if the errors of counsel cannot be shown by a preponderance 

of the evidence to have determined the outcome." Strickland, 

supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. 

Thus, the Court expressly declined to require a defendant to 

show "counsel's deficient conduct more likely than not altered 

the outcome in the case[,]" Id. at 693, 104 S. Ct. at 2068, 80 

L. Ed. 2d at 697, holding such an "outcome-determinative 

standard" imposed too heavy a burden where the attorney's lack 

of professionalism removes "one of the crucial assurances that 
19 A-6175-10T4

the result of the proceeding is reliable." Id. at 694, 104 S. 

Ct. at 2068, 80 L. Ed. 2d at 697.

Instead, the Court adopted the now-familiar standard: "The 

defendant must show that there is a reasonable probability that, 

but for counsel's unprofessional errors, the result of the 

proceeding would have been different." Id. at 694, 104 S. Ct.

at 2068, 80 L. Ed. 2d at 698. The Court made clear that 

"reasonable probability" is not the same as more likely than 

not; rather, "reasonable probability is a probability sufficient 

to undermine confidence in the outcome." Ibid. Thus, "[w]hen a 

defendant challenges a conviction, the question is whether there 

is a reasonable probability that, absent the errors, the 

factfinder would have had a reasonable doubt respecting guilt." 

Id. at 695, 104 S. Ct. at 2068-69, 80 L. Ed. 2d at 698. 

In making a prejudice finding, the PCR court must consider 

"the totality of the evidence before the judge or jury." Id. at 

695, 104 S. Ct. at 2069, 80 L. Ed. 2d at 698. "[A] verdict or 

conclusion only weakly supported by the record is more likely to 

have been affected by errors than one with overwhelming record 

support." Ibid.

The Court also cautioned: "Most important, in adjudicating 

a claim of actual ineffectiveness of counsel, a court should 

keep in mind that the principles we have stated do not establish 
20 A-6175-10T4

mechanical rules." Id. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d

at 699. The fundamental guideposts are reliability and 

fairness. 

Although those principles should guide the 

process of decision, the ultimate focus of 

inquiry must be on the fundamental fairness 

of the proceeding whose result is being 

challenged. In every case the court should 

be concerned with whether, despite the 

strong presumption of reliability, the 

result of the particular proceeding is 

unreliable because of a breakdown in the 

adversarial process that our system counts 

on to produce just results.

[Ibid.]

In addressing an ineffective assistance claim based on a 

counsel's failure to call an absent witness, a PCR court must 

unavoidably consider whether the absent witness's testimony 

would address a significant fact in the case, and assess the 

absent witness's credibility. See McCauley-Bey v. Delo, 97 F.3d 

1104, 1106 (8th Cir. 1996) (stating that the absent witness's 

credibility "is a part of determining prejudice"), cert. denied, 

520 U.S. 1178, 117 S. Ct. 1453, 137 L. Ed. 2d 558 (1997); 

Commonwealth v. Johnson, 966 A.2d 523, 540 (Pa. 2009) (stating 

"the predicate Strickland question on a collateral attack 

requires a judicial assessment of credibility in evaluating 

prejudice"); cf. State v. Allen, 398 N.J. Super. 247, 258-59 

(App. Div. 2008) (stating that trial court must test credibility 
21 A-6175-10T4

of uncalled witness's exculpatory statement on a motion for a 

new trial on grounds of newly discovered evidence).3

However, the assessment of an absent witness's credibility 

is not an end in itself. Rather, it is a factor in the court's 

determination whether there is a reasonable probability that, 

but for the attorney's failure to call the witness, the result 

would have been different — that is, there would have been 

reasonable doubt about the defendant's guilt. 

We find persuasive the Pennsylvania Supreme Court's 

discussion of this distinction, succinctly stating:

We realize, of course, that assessing 

credibility for purposes of Strickland

prejudice is not necessarily the same thing 

as assessing credibility at a trial. Our 

research has not revealed any case from this 

Court or the U.S. Supreme Court that 

 

3 We recognize that Strickland, supra, held the standard for 

granting a new trial based on newly discovered evidence is "not 

quite appropriate" as the prejudice test for ineffective 

assistance of counsel. 466 U.S. at 694, 104 S. Ct. at 2068, 80 

L. Ed. 2d at 697.

Even when the specified attorney error 

results in the omission of certain evidence, 

the newly discovered evidence standard is 

not an apt source from which to draw a 

prejudice standard for ineffectiveness 

claims. The high standard for newly 

discovered evidence claims presupposes that 

all the essential elements of a presumptively 

accurate and fair proceeding were present in 

the proceeding whose result is challenged.

 

[Ibid.] 
22 A-6175-10T4

specifically sets forth a standard for 

credibility determinations in the Strickland

prejudice context. Logically, however, 

credibility assessments in the Strickland

context are not absolutes, but must be made 

with an eye to the governing standard of a 

"reasonable probability" that the outcome of 

the trial would have been different. Thus, 

we reject the Commonwealth's suggestion that 

the PCR[] court "must necessarily find that 

if the evidence presented at the PCR[] 

hearing had been presented at trial, it 

would have been found to be credible by the 

jury and would have resulted in [appellee's] 

acquittal." Such a high burden, it seems to 

us, does not comport with the Strickland

reasonable probability standard. 

. . . .

In assessing credibility . . . the 

question for the PCR[] court is not whether 

the jury in fact would have credited 

appellee's new evidence and his recast alibi 

evidence. Instead, the question is whether 

the nature and quality of the evidence is 

such that there is a reasonable probability 

that the jury would have credited it and 

rendered a more favorable verdict.

[Johnson, supra, 966 A.2d at 541-42 

(internal citations omitted).]4

 

4 The Sixth Circuit has noted that it is not the PCR court's task 

to determine whether the absent witness is credible; that is the 

task of the jury. Avery v. Prelesnik, 548 F.3d 434, 439 (6th 

Cir. 2008), cert. denied, 558 U.S. 932, 130 S. Ct. 80, 175 L. 

Ed. 2d 234 (2009). We are persuaded, however, in accord with 

McCauley-Bey, supra, and Johnson, supra, that the PCR court's 

consideration of the absent witness's credibility is essential 

to assess prejudice. Nonetheless, we agree with the Sixth 

Circuit's view that a court's credibility assessment does not 

alone "dispose of the issue of prejudice." Ibid. See also 3 

Wayne R. LaFave et al., Criminal Procedure § 11.10(d) n. 168 (3d 

(continued)
23 A-6175-10T4

In considering the impact of the absent witness, a court 

should consider: "(1) the credibility of all witnesses, 

including the likely impeachment of the uncalled defense 

witnesses; (2) the interplay of the uncalled witnesses with the 

actual defense witnesses called; and (3) the strength of the 

evidence actually presented by the prosecution." McCauley-Bey, 

supra, 97 F.3d at 1106. All three factors derive from the 

court's obligation under Strickland to consider the totality of 

the evidence in making its prejudice determination. 

When reviewing a PCR court's determination, we generally 

defer to the court's factual findings, including credibility 

determinations, if they are supported by "adequate, substantial 

and credible evidence." State v. Harris, 181 N.J. 391, 415, 

419-20 (2004) (internal quotation marks and citation omitted), 

cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 

(2005). However, we review legal issues de novo. Id. at 419 

(citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 

N.J. 366, 378 (1995)). Finally, when considering mixed 

questions of law and fact, we defer to "supported factual 

findings," but "review de novo the lower court's application of 

any legal rules to such factual findings." Id. at 416 (citation 

 

(continued)

ed. 2007 & Supp. 2012-2013) (comparing Avery, supra, and 

Johnson, supra).
24 A-6175-10T4

omitted); see also State v. Reevey, 417 N.J. Super. 134, 146 

(App. Div. 2010), certif. denied, 206 N.J. 64 (2011). 

We conclude the PCR judge's analysis incorrectly focused on 

comparing the relative credibility of D.A. and L.N. The court 

did not fulfill the Strickland mandate to consider the totality 

of the circumstances. The court did not address the impact of 

L.H.'s testimony, or the impact of D.A.'s testimony that L.N. 

had a history of lying, and that her behavioral issues preceded 

the alleged assaults. Also, as defense counsel argued below, 

D.A.'s and L.H.'s absence at trial was particularly harmful,

when considering defendant's credibility. He testified they 

were present in November 2000, specifically contradicting L.N. 

The State highlighted defendant's assertion. Surely his son and 

wife would have corroborated defendant's testimony, if defendant 

had been telling the truth. In other words, D.A.'s and L.H.'s 

testimony would not only tend to undermine L.N.'s credibility, 

it would have bolstered defendant's.5

The court also erred by relying on the jury's apparent 

finding that L.N. was credible, because it voted to convict. 

 

5 Defendant does not base his ineffective assistance claim on his 

trial counsel's performance eliciting defendant's incarceration 

record and child support arrears, and failing to seek 

appropriate jury instructions on the subjects. Nonetheless, the 

evidence may have portrayed defendant in a negative light. 

Consequently, D.A.'s and L.H.'s testimony may also have helped 

to counter the effect of that negative impression.
25 A-6175-10T4

The court noted that there were two other incidents, implying 

that D.A. could not directly challenge L.N.'s testimony with 

respect to those. However, the jury's credibility findings in 

the trial beg the question whether the jury would have found 

reasonable doubt had it heard from the absent witnesses. D.A.'s 

and L.H.'s testimony about the November incident, and D.A.'s 

testimony about L.N.'s behavioral issues and past lying, if 

believed, could raise questions about L.N.'s credibility in 

general, which would affect her credibility as to the December 

2000 and February 2001 incidents. The PCR judge was hampered by 

the fact that he did not preside over the trial, and could not 

personally assess L.N.'s credibility. 

We determine that the judge, in denying defendant's motion 

for reconsideration, answered the wrong question. The issue was 

not whether L.N. was more credible, or more likely to be 

believed, than D.A. The issue was whether there was a 

reasonable probability — that is, a probability sufficient to 

undermine confidence in the outcome — that the jury would have 

found reasonable doubt about defendant's guilt, had it heard 

from the absent witnesses. A jury may well have determined that 

L.N. was more credible than D.A., but that would not necessarily 

be enough to convict. The jury would have had to believe L.N. 

beyond a reasonable doubt, notwithstanding the apparently 
26 A-6175-10T4

credible testimony of D.A., the testimony of L.H., and the nowcorroborated testimony of defendant. Although the trial court 

accurately recited the Strickland test in its initial decision, 

we are convinced it was not properly applied, particularly 

since, on reconsideration, the court deemed decisive its 

comparison of L.N.'s and D.A.'s credibility. 

We exercise de novo review of the legal aspects of the 

mixed questions of law and fact, and base our review on the 

trial record, and the PCR court's determination that D.A. 

appeared to be a credible, albeit interested witness. We 

conclude it was reasonably probable that the jury would have had 

reasonable doubt about defendant's guilt. We need not address 

whether it was more likely than not that a jury would have 

acquitted. We reach our conclusion mindful of the guidance in 

Strickland that "the ultimate focus of our inquiry must be on 

the fundamental fairness of the proceeding whose result is being 

challenged" and whether "the result . . . is unreliable" because 

of counsel's failures. Strickland, supra, 466 U.S. at 696, 104 

S. Ct. at 2069, 80 L. Ed. 2d at 699.

Reversed.