SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3712-14T3

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

NATHANIEL HARVEY,

Defendant-Respondent.

_________________________________________

Argued February 14, 2017 – Decided

Before Judges Messano, Espinosa and Suter.

On appeal from the Superior Court of New 

Jersey, Law Division, Middlesex County, 

Indictment No. 85-11-1568.

Nancy A. Hulett, Assistant Prosecutor, argued 

the cause for appellant (Andrew C. Carey, 

Middlesex County Prosecutor, attorney; Ms. 

Hulett, of counsel and on the brief).

Eric V. Kleiner argued the cause for 

respondent.

PER CURIAM

After being twice convicted by a jury and sentenced to death 

for the June 1985 murder of Irene Schnaps, defendant Nathaniel 

Harvey filed a pro se petition for post-conviction relief (PCR) 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." 

Although it is posted on the internet, this opinion is binding only on the 

parties in the case and its use in other cases is limited. R.1:36-3.

August 28, 2017
2 A-3712-14T3

alleging the ineffective assistance of counsel (IAC) during the 

second trial. The matter was transferred to Union County because 

one of defendant's trial counsel had become a Superior Court judge 

in Middlesex County. PCR counsel filed various motions seeking 

additional discovery and forensic testing. The PCR court denied 

defendant's petition without an evidentiary hearing. 

After granting defendant's direct appeal and motion for 

further forensic testing, the Supreme Court summarily remanded the 

matter for an evidentiary hearing and ordered the PCR court to 

"consider the petition . . . anew . . . ."1 The parties stipulated 

to the issues to be litigated at the hearing, which included not 

only defendant's IAC claims, but also that the State failed to 

provide exculpatory evidence, in violation of Brady v. Maryland, 

373 U.S. 83, 87, 83 S. Ct. 1194, 1196-97, 10 L. Ed. 2d 215, 218 

(1963), and newly discovered evidence compelled a new trial. 

The hearing took place before Judge Stuart L. Peim, with 

testimony taken on sixty-two days between April 2011 and February 

2014. In a comprehensive, written opinion dated March 11, 2015, 

Judge Peim granted defendant's petition, staying his order pending 

 

1 The Court originally retained jurisdiction, and entered an 

additional order further detailing the procedure and scope of the 

forensic testing. After defendant's death sentence was commuted, 

the Court ordered that all further appellate proceedings following 

the evidentiary hearing should be filed in our court. 
3 A-3712-14T3

our decision on the State's motion for leave to appeal, which we 

later granted. 

I.

We provide some necessary context to the specific issues 

raised in the evidentiary hearing before Judge Peim by relying on 

the facts as presented in the Court's opinions in defendant's two 

direct appeals, State v. Harvey, 121 N.J. 407, 411-12 (1990) 

(Harvey I), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. 

Ed. 2d 268 (1991), and State v. Harvey, 151 N.J. 117, 146 (1997) 

(Harvey II), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. 

Ed. 2d 683 (2000). 

A concerned co-worker found the victim's lifeless body in the 

apartment where she lived alone in Plainsboro. Harvey II, supra, 

151 N.J. at 137-38. There were no signs of forced entry, but the 

bedroom where the victim was found evidenced a struggle, with 

bloodstains on the floor, a towel, the mattress and box spring,

and a cardboard box protruding from under the bed. Id. at 138. 

The victim sustained severe wounds to her head and face, and, 

although her back was covered in blood, there was no blood on the 

front of her body, suggesting someone had attempted to wipe it 

clean. Ibid. Police found a bloody sneaker print on a pillowcase, 

as well as an empty Seiko-LaSalle watch box, empty camera box and 
4 A-3712-14T3

empty jewelry box. Ibid. The victim's pocketbook was open and 

empty in the bathroom. Ibid. 

Contemporaneously with the murder, police in nearby West 

Windsor had been investigating a string of burglaries and sexual 

assaults. Id. at 139. Defendant fit the physical description of 

the perpetrator, who usually travelled by foot or on a bike. Ibid. 

He was detained, identified by one of the burglary victims, and 

he confessed to committing several burglaries and a sexual assault. 

Ibid. The next day, while performing a consent search of 

defendant's car, police found a Seiko-LaSalle watch. Id. at 139-

40.

During interrogation following his arraignment, defendant 

confessed to the murder of Schnaps. Id. at 140. On defendant's 

first appeal, the Court suppressed the confession because of a 

Miranda2 violation, but declined to consider defendant's claim that 

his confession was involuntary. Harvey I, supra, 121 N.J. at 425. 

It reversed defendant's conviction on this and other grounds. 

Harvey II, supra, 151 N.J. at 141-42.

Without defendant's confession available for the second 

trial, the State relied heavily on DNA and serological evidence. 

 

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 

694 (1966). 
5 A-3712-14T3

Id. at 137, 142. Philip Beesley, a forensic scientist employed

by the New Jersey State Police, opined that bloodstains on the box 

spring and cardboard box had genetic markers and enzymes consistent 

with defendant's blood, not the victim's. Id. at 143. He also 

stated that the enzyme phenotype found in these bloodstains was 

found only in African-Americans; defendant is an African-American

and the victim was not. Ibid. 

Another State Police scientist, Theodore Mozer, testified 

that a hair recovered from the victim's back did not belong to her 

and had "Negroid" characteristics consistent with defendant's 

control hair. Ibid. He also examined sneakers seized when 

defendant was arrested and from a search of his wife's apartment 

and stated one sneaker "could" have made the bloody sneaker print 

left at the scene. Ibid. 

Lastly, the State produced two DNA experts from Cellmark

Diagnostic Laboratories, Julie Cooper and Dr. Charlotte Word. 

Ibid. They testified that the blood samples collected from the 

crime scene were "genetically comparable to defendant's DNA," and 

"defendant's genotypes for the genetic markers examined were 

common only to one-in-1,400 African Americans." Id. at 143-44.

Defendant did not testify, but produced two witnesses. Id.

at 144. One, from Seiko, said the company produced thousands of 

watches like the one seized from defendant's car. Ibid. 
6 A-3712-14T3

Defendant's DNA expert, Dr. Robert Shaler, said the Cellmark tests 

were "scientifically indefensible." Ibid. He opined that the 

genetic makeup of the blood found at the scene was present in "one 

in fifty to one in 200 African-Americans." Ibid. 

Based on this evidence, the jury convicted defendant, and, 

following the penalty phase, the judge sentenced defendant to 

death. Id. at 144-46.

II.

Judge Peim heard the testimony of seventeen witnesses, 

including, among others, the two attorneys who represented 

defendant at the second prosecution, the assistant prosecutor who 

tried the first case, and Beesley, Mozer, and Dr. Word. Defendant 

produced his own DNA experts, and the State produced additional 

expert testimony regarding DNA test results conducted after the 

second trial. 

Judge Peim found that senior defense counsel had 

approximately six years' experience in the Public Defender's 

Office prior to being assigned defendant's case in 1992. She had 

tried two other murder cases, but had never tried a death penalty 

case or one involving the type of forensic evidence produced at 

defendant's second trial; she had no training in either death 

penalty cases or forensics. Junior defense counsel had been 

assigned to the trial section of the Public Defender's Office 
7 A-3712-14T3

since 1991, approximately three years before the second trial, 

and, although he was assigned to handle the forensic evidence, he 

received little or no supervision from co-counsel.

Judge Peim considered defendant's IAC claims as they related 

to the critical forensic evidence at the second trial, i.e., the 

serological and DNA evidence, the "Negroid" hair, and the bloody 

sneaker print. As appropriate, he referenced the relationship 

between this evidence and Peter Stohwasser, an individual who 

lived in the same apartment complex as the victim, knew her, and 

had a history of domestic violence. Stohwasser was the "initial 

suspect in the case," and the subject of defendant's asserted

defense of third-party guilt. Harvey II, supra, 151 N.J. at 203-

04.

A.

Regarding the bloody sneaker print, Judge Peim observed that 

the State produced a "sneaker expert" at defendant's first trial, 

Dr. Claude Owen Lovejoy, who completely ruled out two of the three 

Pony-brand sneakers seized during the investigation and said it 

was "highly improbable" that the third pair made the print. Dr. 

Lovejoy also provided expert testimony as to the stature of the 

person who left the footprint. Harvey I, supra, 121 N.J. at 426. 

On the first direct appeal, in addressing evidential issues in the 

event of a retrial, the Court concluded Dr. Lovejoy's "methodology 
8 A-3712-14T3

was not of sufficient scientific reliability," with respect to 

comparing sneaker prints with stature, and he "may not testify as 

an expert" on retrial. Id. at 429. 

However, we agree with Judge Peim that the Court's holding 

in Harvey I did not foreclose the potential use at the second 

trial of Dr. Lovejoy's opinion that none of the seized sneakers 

likely made the footprint. Notably, the Court indicated that 

expert testimony was not required to compare a shoe print and the 

shoe alleged to have made that print, nor was it required to 

establish the proposition that shorter people tend to have smaller 

feet. Id. at 427. Also, Mozer's expert testimony at the second 

trial was certainly "inconsistent" with the State's evidence at 

the first trial. Judge Peim found defense counsel should have 

either moved Dr. Lovejoy's testimony into evidence, called him as 

a defense witness, or hired their own expert, but they did none 

of these things. Instead, the cross-examination of Mozer regarding 

the bloody footprint was very brief. 

Judge Peim then considered the effect of this failure in the 

context of defendant's third-party guilt claim. He noted defense 

counsel were provided with the sworn testimony of a police 

detective in support of a search warrant for Stohwasser's 

apartment. The judge noted it was unclear from the testimony at 

the PCR hearing whether trial counsel had read this discovery, 
9 A-3712-14T3

but, "[b]ased on the fact that useful information [in the

discovery] was not used by defense counsel, one must conclude it 

was not read, or read and forgotten." 

In the sworn testimony to obtain the search warrant, the 

detective claimed the bloody footprint was made by a Nike sneaker, 

the type worn by Stohwasser, not defendant. The detective also

characterized Stohwasser as "deceptive" when questioned about the 

victim's death. Moreover, Judge Peim observed that Mozer 

identified the bloody print as being made by a Pony sneaker only

after defendant was arrested, although an investigator identified 

a Pony logo on the print before defendant's arrest.

In fact, Mozer's handwritten notes predating defendant's 

arrest indicated the footprint was "incomplete — no further 

information could be developed." Judge Peim found that defense 

counsel never asked for "all documents which relate[d] in any way 

to the analysis of the bloody footprint." Regardless, the judge 

found these notes should have been turned over by the State under 

Brady. Judge Peim also found Mozer could have been effectively 

cross-examined with his own notes, and, further, that defense 

counsel never questioned Mozer about the fact that no blood was 

found on any of the seized sneakers, even though "[t]he crime 

scene was covered in blood, [and] the killer left a bloody 

footprint."
10 A-3712-14T3

B.

Regarding the "Negroid hair" recovered from the victim's 

back, the Court rejected defendant's argument raised on the first 

appeal that Mozer was unqualified and unfamiliar with accepted 

standards for comparison. Harvey I, supra, 121 N.J. at 429-30. 

Mozer testified at the first trial that "the hair had come either 

from defendant or from '[a]nother individual who had [the] same 

microscopic characteristics.'" Id. at 429. On defendant's second 

appeal, the Court was unpersuaded that the prosecutor's 

examination of Mozer was improper. Harvey II, supra, 151 N.J. at 

217-18. 

Judge Peim considered Mozer's testimony at the PCR hearing, 

in which the expert acknowledged that his analysis of the two 

hairs was highly subjective. 

Q. [By judge]: I'll know it when I see it, 

that's the analysis.

A. [Mozer]: I'm afraid so, Judge.

The hair itself was never produced at either trial, and Judge 

Peim found that "[w]hen the hair became missing and under what 

circumstances [was] not clear." Trial counsel in the second trial 

never asked to see the hair or other evidence of Mozer's analysis, 

such as microscopic slides, photographs, or notes. At the PCR 
11 A-3712-14T3

hearing, both defense counsel testified they did not know the hair 

was missing.3

Judge Peim concluded trial counsel should have demanded the 

hair and all discovery relating to the hair, or, alternatively, 

they should have retained an expert to challenge the reliability 

of Mozer's analysis. The judge also found that the State "should 

have specifically disclosed that the hair was missing." He 

reasoned that if, as the State alleged, trial counsel knew the 

hair was missing, counsel "were ineffective in how they handled 

the hair situation." The judge concluded defense counsel should 

have sought to have any testimony about the hair excluded, or, 

failing that, cross-examined Mozer about the missing hair, lack 

of notes or photographs, and sought an adverse inference charge. 

Yet, they "did not pursue any of these avenues."

C.

Judge Peim carefully considered trial counsel's handling of 

the DNA evidence at the second trial. He recognized that 

Cellmark's DNA analysis of the bloodstained box spring was the 

"smoking gun," because it concluded the stain's genetic markers 

were a combination of the victim's and defendant's blood. At the 

same time, he referred to a letter from Dr. Shaler to defense 

 

3 In a post-trial certification, however, senior trial counsel 

said she recalled the hair itself was lost prior to the retrial.
12 A-3712-14T3

counsel sent in 1994, which definitively stated that based upon 

serological (blood-type (A/B/O) testing), the bloodstain on a 

cardboard box found under the bed and immediately below the stained 

box spring could not have come from either defendant or the victim. 

Critically, at the second trial, Beesley testified that the 

blood from the box spring had dripped onto the cardboard box. 

However, in very limited cross-examination, he was never

questioned about A/B/O testing and any inconsistency between the 

two stains. As Judge Peim recognized, if Beesley acknowledged

that based upon the A/B/O testing the stain on the cardboard came 

from neither defendant nor the victim, "[t]his would have 

established that there had to be a third bleeder at the scene." 

More importantly, with respect to the theory of a third 

bleeder, the judge cited Cellmark's acknowledgment that it was 

generally impossible to determine DNA types of individual donors 

when three or more donors were present by using the specific

analyses it employed. Yet, Judge Peim found trial counsel failed 

to challenge Cellmark's assumption that there were only two donors 

to the bloodstain on the box spring. Judge Peim specifically 

addressed this in the context of the opinion in Harvey II, in 

which, based on the record then before it, the Court rejected 

defendant's "third-person" argument as "more theoretical than 

real." 151 N.J. at 184.
13 A-3712-14T3

Judge Peim also considered a second assumption made by 

Cellmark, i.e., there were equal amounts of the victim's blood and 

defendant's blood in the stain. He noted Beesley's own report 

indicated most of the blood found at the scene was "genetically 

compatible" with the victim. He also noted serious questions 

regarding the scientific reliability of Cellmark's conclusions in 

light of the testimony of defendant's DNA experts at the PCR 

hearing.

Judge Peim acknowledged that some of Dr. Shaler's testimony 

at the second trial rebutted the conclusions reached by Cellmark, 

and that despite very short cross-examination, trial counsel 

elicited an admission from Dr. Word that it could not be 

conclusively determined whether the stain on the box spring came 

from more than two people. Ultimately, however, the judge 

determined "[t]here were avenue[s] to attack the DNA and serology 

analysis that were not used . . . and should have been[,]" as they 

were disclosed directly in correspondence from Dr. Shaler to 

defense counsel.

D.

Lastly, Judge Peim considered trial counsels' performance 

regarding the assertion of third-party guilt. He noted that senior 

counsel's opening statement claimed the State's investigation 

stopped short of proving that defendant, "to the exclusion of 
14 A-3712-14T3

anyone else," killed the victim. One of the lead investigators 

in the case, James O'Brien, testified that law enforcement 

eliminated Stohwasser as a suspect after items seized from his 

apartment tested negatively for the presence of blood, Stohwasser

had no footwear that matched the bloody foot print on the 

pillowcase, a Negroid hair was discovered at the scene, and 

Stohwasser passed a polygraph. Harvey II, supra, 151 N.J. at 203-

206. Trial counsel asked for a mistrial based upon this reference 

to a polygraph, but the judge gave a curative instruction instead. 

The Court concluded any prejudice was "minimal." Id. at 206.

However, the PCR proceedings revealed that Stohwasser had not 

passed the polygraph. In fact, the sworn testimony supporting the 

search warrant of Stohwasser's home indicated the opposite. 

Defense counsel had this information in the discovery provided by 

the State.

At the PCR hearing, O'Brien testified the prosecutor told him 

in advance that he was going to ask about the polygraph, and he 

claimed he testified truthfully, i.e., he believed, based on 

conversations with other investigators, that Stohwasser actually 

did pass the test.4 Senior defense counsel testified at the PCR

hearing that she essentially abandoned the third-party guilt claim 

 

4 O'Brien was not the investigator whose testimony secured the 

search warrant.
15 A-3712-14T3

once the jury heard Stohwasser had passed a polygraph. Her 

decision was further influenced by the prosecutor's warning that 

if she explored the third-party guilt claim, he would seek to have 

defendant's confession admitted, since in Harvey I the Court never 

addressed the voluntariness issue.

More importantly, defense counsel never asked for the 

polygraph file in discovery. It revealed that the polygraphist 

concluded Stohwasser was deceptive as "to all questions asked 

including when he denied being involved in [the] murder."

Judge Peim listed six other statements in the testimony 

supporting the search warrant, in addition to the "Nike" sneaker 

statement, which supported the State's proofs that probable cause 

existed to believe Stohwasser murdered the victim. These included 

Stohwasser's desire to have a romantic relationship with the 

victim, even though she was not interested, prior incidents of 

domestic violence and damage to property, and that Stohwasser

lived in the same apartment complex.

Judge Peim acknowledged it was unlikely the results of the 

polygraph test would have been admitted at the second trial, but 

defendant could have impeached O'Brien's credibility by using the 

prior sworn testimony. He also noted O'Brien's testimony at trial,

that police found no items containing blood in Stohwasser's home,

was false, since police actually seized a quilt that tested 
16 A-3712-14T3

positively for human blood. Additional analysis could not develop 

further identification of the blood, and authorities returned the 

quilt to Stohwasser before the first trial.

E.

Judge Peim concluded defendant had not received "adequate 

assistance of counsel as guaranteed by the Sixth Amendment." 

Noting again the State's reliance on serological and DNA evidence, 

the judge concluded trial counsel had "strong and more viable" 

means to "rebut and attack this evidence which were not utilized 

. . . ." He determined these "approaches would have been obvious 

from a careful review" of discovery and the record from the first 

trial, including Dr. Lovejoy's testimony about the sneaker print, 

the investigator's testimony in support of the Stohwasser search 

warrant, lab tests done on the quilt seized from Stohwasser's 

home, Beesley's blood-type analysis of the bloodstains at the 

crime scene, and correspondence from defense DNA experts at trial. 

Judge Peim also concluded that trial counsel failed to 

"request items from the State which any experienced criminal lawyer 

would have asked for," including the polygraph file, and all 

documents regarding the bloody footprint and the "Negroid hair." 

He found that "there is a reasonable probability that but for 

these deficiencies . . . the result of the trial would have been 

different." He granted defendant's petition.
17 A-3712-14T3

III.

 Before us, the State argues in a single point:

POINT I

THE COURT BELOW IMPROPERLY USED HINDSIGHT TO 

RULE THAT TRIAL COUNSEL WAS INEFFECTIVE IN THE 

1994 RETRIAL.

We have considered the State's contention, in light of the

considerable record from the evidentiary hearing and applicable 

legal standards. We affirm substantially for the reasons expressed 

by Judge Peim. We add only the following.

To establish an IAC claim, a defendant must satisfy the twoprong test formulated in Strickland v. Washington, 466 U.S. 668, 

687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and 

adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 

(1987). First, he must demonstrate "counsel made errors so serious 

that counsel was not functioning as the 'counsel' guaranteed 

. . . by the Sixth Amendment." Id. at 52 (quoting Strickland, 

supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). 

To satisfy prong one, [a defendant] ha[s] to 

"overcome a 'strong presumption' that counsel 

exercised 'reasonable professional judgment'

and 'sound trial strategy' in fulfilling his 

responsibilities." "[I]f counsel makes a 

thorough investigation of the law and facts 

and considers all likely options, counsel's 

trial strategy is 'virtually 

unchallengeable.'" Mere dissatisfaction with 

"'a counsel's exercise of judgment'" is 
18 A-3712-14T3

insufficient to warrant overturning a 

conviction. 

[State v. Nash, 212 N.J. 518, 542 (2013) 

(third alteration in original) (citations 

omitted).]

Second, a defendant must prove that he suffered prejudice due 

to counsel's deficient performance. Strickland, supra, 466 U.S.

at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. A defendant must 

show by a "reasonable probability" that the deficient performance 

affected the outcome. Fritz, supra, 105 N.J. at 58. "'A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.'" State v. Pierre, 223 N.J. 560, 583 

(2015) (quoting Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 

2068, 80 L. Ed. 2d at 698). "If [a] defendant establishes one 

prong of the Strickland-Fritz standard, but not the other, his 

claim will be unsuccessful." State v. Parker, 212 N.J. 269, 280

(2012).

"Our standard of review is necessarily deferential to a PCR 

court's factual findings based on its review of live witness 

testimony. In such circumstances we will uphold the PCR court's 

findings that are supported by sufficient credible evidence in the 

record." Nash, supra, 212 N.J. at 540 (citing State v. Harris, 

181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct.
19 A-3712-14T3

2973, 162 L. Ed. 2d 898 (2005)). However, we review the PCR 

court's legal conclusions de novo. Id. at 540-41.

The State does not contend, nor could it, that Judge Peim's 

factual findings were not supported by substantial credible 

evidence in the record. Instead, it argues first that the judge 

"essentially ruled that [defense counsel] could have been better." 

We disagree.

Judge Peim cited specific shortcomings that demonstrated 

counsels' performance was deficient. This included the failure 

to seek discovery on critical issues in the case, as well as the 

inability to consider the significant implication of what was 

actually contained in some of the discovery defendant did receive. 

We agree with the judge's legal conclusion that counsels' 

performance was deficient.

The State next argues that Judge Peim's "analysis [was] barren 

of any meaningful discussion of prejudice within the meaning of 

Strickland and Fritz." We again disagree.

"Important to the prejudice analysis is the strength of the 

evidence that was before the fact-finder at trial." Pierre, supra, 

223 N.J. at 583. As noted, the State's case at defendant's second 

trial was wholly tethered to the Negroid hair and the bloody 

sneaker print, for which the only significant witness was Mozer, 

and the serologic and DNA evidence. The only other important 
20 A-3712-14T3

evidence was the empty watch box found at the scene and the watch 

found in defendant's vehicle, which circumstantially tied 

defendant to the victim.

Mozer's opinions were both somewhat equivocal and certainly 

subject to effective attack, through the use of documentary 

evidence which, in some instances, was available to defense 

counsel, and in other instances, should have been produced by the 

State but was not, or should have been requested in discovery. 

Judge Peim notably did not conclude that defense counsel's 

performance regarding the DNA evidence was in and of itself 

deficient. As evidence adduced at the PCR hearing demonstrated, 

there were significant advances in DNA technology in the 

intervening years between defendant's second trial and the PCR 

hearing. Defense counsel could not be deficient in failing to 

raise arguments based upon the more specific science that was not 

yet available. Additionally, at the PCR hearing the State produced 

the results of new DNA testing performed in 2008 that substantiated 

the critical conclusion that the stain on the box spring was the 

combined DNA of two people, and the probability of defendant's 

inclusion was even greater than testified to at trial. 

However, the judge did not conclude that defendant's new DNA 

testing supported a claim of actual innocence, or was newly

discovered evidence that warranted a new trial. See, e.g., Nash, 
21 A-3712-14T3

supra, 212 N.J. at 549-50 (discussing PCR based upon newly

discovered evidence). Rather, Judge Peim concluded defense 

counsel failed to appreciate the significance of other serological 

evidence and the impact of that evidence upon Cellmark's 

conclusions as testified to at the time of the second trial. In 

short, we agree with Judge Peim. "Defendant's counsel's errors 

were sufficiently serious so as to undermine confidence that 

defendant's trial was fair, and that the jury properly convicted 

him." Pierre, supra, 223 N.J. at 588.

Affirmed. We remand the matter to the Law Division for 

further proceedings consistent with this opinion. We do not retain 

jurisdiction.