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State of New Jersey v. Yusef Allen

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 28, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
YUSEF ALLEN, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-08-1208.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted: December 13, 2010 -- Decided: Before Judges A.A. Rodriguez and C.L. Miniman.

Defendant Yusef Allen appeals from the denial of post-conviction relief (PCR) in connection with his convictions for first-degree murder; second-degree possession of a firearm for an unlawful purpose; and third-degree possession of a firearm without a permit. We affirmed his conviction and aggregate sentence of life imprisonment but reversed and remanded for resentencing to vacate the eighty-five-percent parole ineligibility period under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. State v. Allen (Allen I), 337 N.J. Super. 259, 263-64 (App. Div. 2001), certif. denied, 171 N.J. 43 (2002).

Defendant subsequently filed a PCR petition, which was denied in all respects by the PCR judge, who was also the trial and sentencing judge, and he again appealed. State v. Allen (Allen II), 398 N.J. Super. 247 (App. Div. 2008). Defendant raised a litany of errors, most of which we rejected as not warranting discussion in a written opinion, id. at 259, but we remanded for an evidentiary hearing (1) to consider the effectiveness of trial counsel's decisions to reject the judge's two offers to declare a mistrial and (2) to determine whether an exculpatory affidavit from John Korman constituted newly discovered evidence, id. at 253, both of which we will describe more fully hereafter. The judge again denied PCR, (1) finding that trial counsel made a strategic decision to decline the judge's two offers to grant a mistrial and (2) holding that Korman's affidavit was unreliable and Korman was known to the defense at the time of trial.

After the date this appeal was submitted for decision, defendant pro se filed a motion to supplement the record with newly discovered evidence respecting a witness's recantation. The State did not object to the motion, which we granted. We did not, however, concur in defendant's characterization of the evidence as "newly discovered."

The facts of this case and the testimony offered at trial were fully described in Allen I, supra, 337 N.J. Super. at 264-266, and need not be repeated here, although we incorporate them by reference. The facts relevant to our remand are these. On the second day of trial, the judge ruled that the prosecutor had violated Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), by failing to inform defendant that one of the witnesses at trial, Rhonda Whitfield, had suffered multiple head traumas in a car accident, including concussions that affected her memory.

The judge offered to declare a mistrial, which he thought defendant might decline for economic reasons, but suggested that counsel confer with defendant. The following colloquy occurred after a recess:

TRIAL COUNSEL: Judge, knowing that, based on my experience, believing that your Honor would actually seriously entertain that, we discussed for 15 or 20 minutes and from a tactical--economics has nothing to do with it. I'm not going to disclose the tactical reasons. I feel that the State might not call this witness again. And the State, I also feel the State might handle this case a little more efficiently and effectively next time. I discussed this with [defendant]. I will not disclose tactical reasons, but I'll be quite clear, economics has nothing to do with it. If I thought it was in my client's best interest, I'd ask for a mistrial right now and start again next week.

THE JUDGE: You concur no mistrial be requested, right or wrong?

DEFENDANT: Yes.

THE JUDGE: I don't know about the discussions back and forth with your lawyer, but has he discussed these issues he talked to me about with you?

DEFENDANT: Yes.

THE JUDGE: You agree with the decision to go forward?

DEFENDANT: Yes.

On another occasion later that day, counsel complained that the prosecutor's conduct prejudiced defendant's right to a fair trial. The judge reminded counsel that he was prepared to declare a mistrial:

THE JUDGE: I asked you earlier do you want a mistrial. You said no.

TRIAL COUNSEL: Not on this issue.

THE JUDGE: A mistrial is a mistrial, isn't it, one way or the other. Do you want a new jury or not?

Before answering that question[,] why don't you talk to your client on the issue. He's not right here at this point in time. Ask him on that point. I told you earlier I would give you another trial. You can't have it both ways. Either you want a mistrial and another shot to try it before a different jury or you don't. You talk to your client and you tell me what your preference is.

After a recess, trial counsel informed the judge as follows:

TRIAL COUNSEL: Your Honor, I'm not renewing any applications pursuant to your request.

I discussed this again with my client and I have no motions for mistrial.

THE JUDGE: If you made one a few minutes ago[,] you withdraw it. Is that what you're telling me?

TRIAL COUNSEL: Yes, sir.

On the third trial day, during the direct examination of Cynthia Harrison, a defense witness, trial counsel had Korman escorted into the courtroom so that Harrison could identify him as follows:

TRIAL COUNSEL: Was that man that you saw laying [sic] in the street--we'll call him the victim, okay-had you seen the victim with anyone else earlier that day?

HARRISON: Yeah.

TRIAL COUNSEL: Who had you seen him with? HARRISON: Him (indicating).

THE JUDGE: Him being whom, ma'am?

HARRISON: John.

THE JUDGE: The man between the two officers?

HARRISON: Yes.

THE JUDGE: John Korman.

TRIAL COUNSEL: You identified John Korman as the individual you saw with Lannie Silver earlier that morning?

HARRISON: Yes.

Subsequently, the prosecutor had Korman return to the courtroom to allow the jury to "assess his height and get a closer appearance of him."

In his PCR petition, defendant contended that his counsel was ineffective in failing to accept the judge's offers to declare a mistrial because economic concerns were the motivating factor in rejecting the mistrial offers. Allen II, supra, 398 N.J. Super. at 250, 254-55. With respect to Korman, defendant submitted an affidavit from him in support of his PCR petition, in which Korman stated:

1. I am . . . presently confined at New Jersey State Prison, in the City of Trenton, in the County of Mercer.

2. On October 15, 1997, at approximately 6:20 a.m., I was in the City of Plainfield, New Jersey, at the location of Prescott Place and West Third Street. While I was atthis location I witnessed the shooting of Mr. Lannie Silver.

3. The person I saw shoot Lannie Silver was a light skinned black male, who appeared to be about 20 years old. He pulled the gun from his waist band [sic] and shot Mr. Silver a number of times. I heard about four or five shots.

4. A few days later I was picked up by the Plainfield police and questioned concerning the shooting death of Mr. Lannie Silver. I told the police that I was not at Prescott Place and West Third Street on the night Mr. Silver was shot.

5. I was also forced to appear in court concerning the shooting death of Lannie Silver. While I was in court I saw the man who was on trial for the murder of Lannie Silver, who I now know is [defendant], and I knew immediately that he was not the man who shot Mr. Silver. I did not say anything because I did not want to get involved in this case.

6. Not telling the truth from the beginning and letting an innocent man be convicted for a crime he did not commit has been bothering me for a long time. I was afraid to come forth before now because I had told the police I was not there the night the shooting occurred, and I did not want the police to involve me in this case. [Id. at 250-51 (footnote omitted).]

Defendant also submitted a certification from Dwayne Knight, an inmate paralegal, in support of his PCR petition. Id. at 251 n.2. In pertinent part, Knight stated "that Korman informed him in October or November 2001 that 'he was presentthe night Mr. Lannie Silver was killed [and] that [defendant] was not the person he saw shoot Mr. Silver.'" Ibid. Additionally, Knight stated that "Korman willingly gave him his affidavit which was dated December 21, 2001, and subscribed before a notary public on January 4, 2002." Ibid.

PCR counsel asserted that Korman had been precluded by his own attorney from testifying because he had a pending homicide charge, but Korman was now willing to do so. Id. at 251. Finally, defendant submitted a certification from his trial counsel in which the attorney stated that there were "outrageous instances of prosecutorial misconduct including various Brady violations" and that defendant "did not receive a fair trial and . . . this one single case stands out [in his experience] as a gross miscarriage of justice."

In ruling on the mistrial contention, "[t]he [PCR] judge . . . found that trial counsel made a strategic decision to decline his offer to grant a mistrial." Id. at 252 (footnote omitted). Thus, he denied PCR on that ground. Ibid. As to the Korman affidavit, the PCR judge "held that Korman's affidavit did not meet the standard for newly discovered evidence because it was unreliable and Korman was known to the defense at the time of trial." Ibid. Specifically, the judge said, "[Korman] would stand before a [c]court as a convicted murderer who has been living in the same dormitory or area as your client for the last five or six years. That prong of it being newly discovered, his credibility is totally lacking." Ibid. He also observed that the record was silent as to whether trial counsel had been permitted to speak with Korman. Id. at 253.

In ordering a remand for an evidentiary hearing, we found no procedural bar to consideration of the mistrial issue, id. at 256, and held that "defendant has shown enough to warrant development of the facts at an evidentiary hearing before they are tested against the two-prong Strickland*fn1 test." Id. at 257 (citing State v. Cummings, 321 N.J. Super. 154, 164 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Specifically, we observed:

In sum, we are satisfied that the untested statement of counsel that "economics has nothing to do with" the decision not to pursue the mistrial is not a sufficient response by itself to defendant's present contention to the contrary. The issue as framed, in the context of ineffective assistance of counsel, warrants further development, and defendant is entitled to test the assertion in an evidentiary proceeding. [Ibid.]

As to the Korman issue, we remanded for an evidentiary hearing for the following reasons:

We recognize that post[-]conviction statements of persons who did not testify at trial, particularly when serving time at the same institution as the defendant, are inherently suspect. However, Korman's post-judgment exculpatory statements to third parties, and confirmed by affidavit, must be tested for credibility and cannot be summarily rejected. Accordingly, we remand for an evidentiary hearing as to whether Korman's present statement warrants a new trial under the standard applicable to motions for newly discovered evidence. In judging that issue, we do not preclude development of anything Korman said on prior occasions, especially to defendant's counsel, the prosecutor or others while the trial was in process, regarding being called to testify and for an assessment of credibility based thereon. [Id. at 258-59 (citations and internal quotation marks omitted).]

The evidentiary remand hearing was conducted on August 4 through 6, 2008. Knight; Korman; Charles Miller, the Public Defender's investigator who interviewed Korman; trial counsel; and defendant all testified. Closing arguments were made on September 3, 2008, at which time the judge carefully reviewed the evidence presented and placed his decision on the record.

Without reciting the judge's extensive opinion in detail, he summarized the trial testimony given by Ruby Waller. She was the trial witness who testified that she met the victim at 5:30 or 6:00 on the morning of the shooting on West Third Street near Lee Place and that he asked her to help him buy drugs. They both got into the victim's car and drove to West Third Street and Prescott Place. She described at one point seeing defendant with the victim shortly before he was shot.

The judge also described the testimony of Whitfield, who testified that she saw defendant chasing the victim shortly before the shooting. The judge observed that the credibility of both witnesses was vigorously attacked by defense counsel, using their prior criminal convictions, their drug addictions, and discrepancies between their statements to impeach their credibility. The judge expressed that he thought defense counsel "had done a lot of damage to their credibility."

The judge found defense counsel to be a credible witness. He discredited defendant's testimony that the only basis for rejecting the two offers for mistrial was the economics of retrying the case. Instead, the judge found that, although defendant and defense counsel had briefly discussed the economics of a mistrial, counsel credibly testified that he would have retried the case even without additional compensation. The judge concluded from the attorney's testimony that the real reasons for rejecting the offers for mistrial were tactical concerns about whether the State would call both of the impeached witnesses at a mistrial; whether a new prosecuto might be assigned who would be more effective in retrying the case; and counsel's opinion that they had a good shot at an acquittal, given the state of the evidence up to that point. He found that the attorney's reasoning was sound; there was sufficient time to discuss it with defendant; and the decision was a strategic decision that should not be disturbed. He concluded that neither prong of Strickland had been satisfied because counsel's performance was not deficient; nothing demonstrated any unprofessional errors; and the result would not have been different had the case been retried.

With respect to Korman's testimony, the judge compared Korman's testimony to that of Knight. He found that Knight had "no ox to gore" and that Knight did not lie. He further credited the testimony of Knight that "he makes a practice of telling people who are potential witnesses in PCRs they're not to discuss or read anything about the case, that indeed he does that on a regular basis." He further found that when Knight and Korman first met, Knight had in his possession a file on defendant's case with access to published and unpublished opinions by the Appellate Division. He found that Knight did not provide any of those materials to Korman. Thus, he found that the only logical conclusion was that defendant gave those materials to Korman. He found the whole of Knight's testimony credible and found that it was not exaggerated or fabricated in any way.

The judge then reviewed Korman's extensive criminal history, including his conviction for two separate murders for which he was then serving time. He noted that if Korman's testimony was true, defendant would be entitled to a new trial because it would be newly discovered evidence. However, he found that Korman did not see the shooting, contrary to his testimony. He found that the version given by Korman at the PCR hearing was different from the affidavit he gave to Knight and, of course, different from his earlier total denial of being at the scene at all.

The judge found that not only did Korman have the documents just described in his file, but he also had a document that basically outlined how to lie on the affidavit and take the weight for the murder, "an outline in which he researched immunity and [h]ow he thought that if he gave it in a very careful way, the statement, taking the weight for the murder, it cannot be used against him." He also noted that Korman claimed to have post-traumatic stress disorder from his service in Vietnam, which gave him short-term memory problems that were the basis of a claim for diminished capacity in his own pending PCR application. The judge characterized this as making Korman a "[p]retty shrewd guy. Pretty shrewd liar."

He also found that at the time of the murder, Korman was on prescription medication, and he consumed a pint of brandy, a dozen twelve-ounce cans of Budweiser, and five to seven vials of crack cocaine each and every day. "To say he has problems with his credibility is begging the issue." He noted that Korman admitted lying on various previous occasions, including to the Plainfield police at the time of the homicide. He also lied to Detective Egan during an interview with him and lied in the PCR hearing before the judge repeatedly.

I've seen Mr. [K]orman. I've seen a lot of people testify before me. I looked at his ability to testify. I looked at his body language. He's a liar. In the eyes . . . of the [c]court, Mr. [K]orman is an unreliable person who has lied multiple times and lied in court.

He lied when he said that he saw an unknown, unidentified person murder the victim. He lied when he said it wasn't [defendant]. Now the test for a recanting testimony is the following: the test . . . for the [j]udge to evaluate a recantation upon motion for a new trial is whether it casts serious doubt about the truth of the testimony given at the trial and whether if believable the factual recital or recantation so seriously impugns the entire trial evidence as to give rise to a conclusion that the result is a possible miscarriage of justice.

The judge found that the testimony was not believable--that it was a fabrication and a lie. He found that Korman was unworthy of belief. He also found that counsel was not ineffective in failing to interview Korman because Korman was under indictment for two murders at the time of defendant's trial and defendant had not shown that Korman's counsel would have allowed him to give a statement. Additionally, Korman himself at the time of defendant's trial was denying any knowledge of the crime and denying that he was a witness. As a consequence, he denied the PCR motion. This appeal followed.

In the affidavit defendant submitted in support of his pro se motion to supplement the record before us, he certified that on November 11, 2009, he received some transcripts from the trial of United States v. Mack, a federal drug prosecution in Newark. The transcripts submitted to us were from October 3 and 4, 2001. The witness who was testifying was Ruby Waller. Defendant alleged that he learned of this trial from a conversation with Aaliyah Mack, the niece of several of the defendants in the United States v. Mack case. Mack told defendant that Waller "admitted to lying in the trial of Yusef Allen to the jury as well as the judge about what she witness[ed] in that case." Allen signed his certification on August 12, 2010, in front of a notary republic.

To place Waller's Mack testimony in context, during defendant's trial, Waller testified that she saw defendant come out of the house from which she and Silver were attempting to purchase drugs and that defendant had a gun "'in his hand, down on the side.'" Allen I, supra, 337 N.J. Super. at 265. However, during the Mack trial, she testified as follows:

Q. When you told them that, you told Mr. Norton at that [j]ury case of Yusef Allen . . . that you had told these people the truth, you told them a lie?

A. I told him I did not recall seeing a gun. I didn't say I seen one, I didn't say I'd seen one.

Q. Do you recall when telling these people the truth, seeing the gun, do you recall seeing the gun when you were telling these people the truth?

A. Do I recall seeing a gun?

Q. Yes.

A. Yes, I recall seeing a gun and I told them I didn't recall.

Q. When you told them you didn't recall, you were telling them a lie?

A. Basically.

Q. And when you testified that you had told them the truth under oath at this trial, you were telling a lie then, correct?

A. I never said I seen a gun, and I didn't say I didn't see a gun.

Q. Did you testify at either the trial[,] in the statement that you had given[,] or anyplace else that you saw Satis, Yusef Allen, fire shots at the victim?

A. No, I did not.

Q. Page 24 of the Grand Jury.

A. Yes.

Q. Line 9 you were asked, and did you identify Yusef Allen Satis as a person who had the gun and fired the shots at the victim? And your answer was?

A. Yes, I did.

Q. But you never did that, did you?

A. No, I didn't. I identified him with the gun, yes, I did.

Q. But you never identified him as being someone that shot the victim?

A. No, I didn't.

Q. Or fired shots at the victim?

A. No, I didn't.

Q. So, when at the Grand Jury you were trying to be truthful to them as well?

A. Yes, I was.

Q. When the prosecutor, asked you this question, fired shots at the victim, you didn't correct that at all, did you?

A. I answered too fast.

A-2532-08T3

There were also discrepancies respecting the sequence of events on the day of the shooting. Defendant urged in Point Nine that Waller's recantation constitutes newly discovered evidence warranting a new trial.

Defendant raises the following issues on appeal:

POINT ONE -- THE COURT MISAPPLIED THE APPLICABLE LEGAL STANDARDS IN DENYING POST-CONVICTION RELIEF BASED ON NEWLY DISCOVERED EVIDENCE BECAUSE THE DEFENDANT SATISFIED HIS BURDEN TO SHOW A "PROBABLITY" THAT A NEW JURY WOULD FIND HIM NOT GUILTY OF MURDER. POINT TWO -- THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED AND THE DEFENDANT'S CONVICTIONS VACATED BECAUSE TRIAL COUNSEL'S FAILURE TO ACCEPT THE TRIAL COURT'S OFFER OF A MISTRIAL AS A RESULT OF THE PROSECUTOR'S MISCONDUCT SATISIFED THE FIRST PRONG OF THE STRICKLAND/FRITZ TEST FOR INEFFECTIVE [ASSISTANCE] OF COUNSEL AND THE ENSUING PREJUDICE TO THE DEFENDANT SATISFIED THE SECOND PRONG OF THE TEST AND APPELLATE COUNSEL WAS INEFFECTIVE IN FAILING TO RAISE THIS ISSUE ON DIRECT APPEAL.

POINT THREE -- THE COURT'S RULING DENYING POST-CONVICTION RELIEF VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

POINT FOUR -- DEFENDANT REASSERTS ALL OTHER ISSUES IN POST-CONVICTION RELIEF.

(A) DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AND HIS RIGHT TO DUE PROCESS OF LAW WHEN THE TRIAL COURT DENIED HIS MOTION FOR A MISTRIAL.

(B) TRIAL COUNSEL FAILED TO INVESTIGATE AND CALL AS A WITNESS MR. JOHN KORMAN WHO WOULD HAVE TESTIFIED THAT DEFENDANT WAS NOT THE PERSON HE SAW SHOOT MR. LANNIE SILVER.

(C) COUNSEL FAILED TO CALL AN EXPERT WITNESS TO TESTIFY TO THE

[E]FFECTS COCAINE CAN HAVE ON A PERSON'S PERCEPTION.

(D) THE JURY'S GENERAL VERDICT OF MURDER MUST BE VACATED BECAUSE ONE OF THE PREDICATES FOR CONVICTION (KNOWINGLY CAUSING SERIOUS BODILY INJURY WHICH RESULTED IN DEATH) IS INDISTINGUISHABLE FROM THE CONDUCT PROSCRIBED BY THE [STATUTE] DEFINING AGGRAVATED AND RECKLESS MANSLAUGHTER.

(E) THE PROSECUTOR'S MISCONDUCT WAS SO HEINOUS IT VIOLATED DEFENDANT'S FEDERAL AND STATE RIGHT TO A FAIR TRIAL.

(F) THE COURT SHOULD GRANT POST-CONVICTION RELIEF BASED ON CUMULATIVE ERROR.

POINT FIVE -- THE ORDER DENYING POST-CONVICTION RELIEF SHOULD BE REVERSED BECAUSE THE COURT'S REFUSAL TO RECUSE ITSELF DENIED DEFENDANT HIS RIGHT TO A FAIRLY CONDUCTED POST-CONVICTION RELIEF HEARING.

In his supplemental pro se brief, defendant raises the following issues, which we have renumbered to run consecutively to the issues raised in his counseled brief:

POINT SIX - THE TRIAL COURT'S RULING THAT DEFENDANT WAS NOT DEPRIVED OF HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND UNDIVIDED LOYALTIES WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD, AND CONSTITUTED AN ABUSE OF DISCRETION, THEREFORE THE DECISION SHOULD BE VACATED AND THE WARRANTED RELIEF SHOULD BE ENTERED.

POINT SEVEN - THE PCR COURT ABUSED ITS DISCRETION AND APPLIED AN ERRONEOUS STANDARD OF REVIEW WHEN ADDRESSING THE NEW TRIAL MOTION CLAIM FOR WHICH THIS CASE WAS REMANDED BY THE APPELLATE DIVISION.

POINT EIGHT - THE DEFENDANT WAS SUBJECTED TO INEFFECTIVE ASSISTANCE OF COUNSEL ON REMAND AND A CONFLICT OF INTEREST BY DIVIDED LOYALTIES BY COUNSEL'S FAILURE TO CONSULT WITH DEFENDANT, AND TO ADDRESS THE CLAIMS DEFENDANT WISHED TO HAVE ADDRESSED DEPRIVED DEFENDANT OF A FAIR HEARING.

POINT NINE - NEWLY DISCOVERED EVIDENCE REVEALS THAT THE STATE'S CHIEF WITNESS RUBY WALLER KNOWINGLY LIED AT DEFENDANT'S TRIAL, THEREFORE, THE DEFENDANT'S CONVICTION SHOULD BE REVERSED.

We review the legal conclusions of a PCR judge de novo. State v. Harris, 181 N.J. 391, 420-21 (2004) (citing Mickens-Thomas v. Vaughn, 355 F.3d 294, 303 (3d Cir. 2004); Hakeem v. Beyer, 990 F.2d 750, 758 (3d Cir. 1993)), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). The same scope of review applies to mixed questions of law and fact. Id. at 420 (citing McCandless v. Vaughn, 172 F.3d 255, 265 (3d Cir. 1999)). We review fact-findings for clear error, ibid. (citing Burkett v. Fulcomer, 951 F.2d 1431, 1438 (3d Cir. 1991), cert. denied, 505 U.S. 1229, 112 S. Ct. 3055, 120 L. Ed. 2d 921 (1992)), and accord deference to credibility determinations, id. a 420-21 (citing United States v. Igbonwa, 120 F.3d 437, 441 (3d Cir. 1997), cert. denied, 522 U.S. 1119, 118 S. Ct. 1059, 140 L. Ed. 2d 121 (1998)).

We have carefully reviewed the whole of the testimony offered by each witness at the PCR hearing. We concur unequivocally with the judge's fact-findings that defendant and Korman were not credible. Korman in particular was impeached by the prosecutor ad nauseam. His complete and utter lack of credibility exudes from the cold record itself. Defendant's testimony too lacked credibility and was also at odds with the testimony given by his trial counsel.

A judge may relieve a party from a final judgment for "newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49." R. 4:50-1(b). In order to justify a new trial, the judge must find that the evidence would likely change the result of the case if a new trial is granted. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009); Quick Chek Food Stores v. Twp. of Springfield,

83 N.J. 438, 445 (1980). Because the testimony of Korman was not credible, it cannot be said that his testimony would likely change the outcome of the case if a new trial was granted.

As to the mistrial issue, in Strickland, supra, 466 U.S. at 685-86, 104 S. Ct. at 2063, 80 L. Ed. 2d at 692, the United States Supreme Court explained the constitutional guarantee of effective assistance of counsel for every criminal defendant embodied in the Sixth Amendment. A two-prong analysis is required when evaluating a claim of ineffective assistance of counsel. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prevail, the defendant must first demonstrate that trial counsel committed serious professional errors. Ibid. Second, the defendant must demonstrate that the professional errors prejudiced the defendant to the extent that he was deprived of a fair trial. Ibid. Our Supreme Court has adopted the standards embodied in Strickland. State v. Fritz, 105 N.J. 42, 57-58 (1987).

"'Judicial scrutiny of counsel's performance must be highly deferential,' and must avoid viewing the performance under the 'distorting effects of hindsight.'" State v. Norman, 151 N.J. 5, 37 (1997) (quoting Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). Moreover, there is a strong presumption that counsel "rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Adequate assistance of counsel should be measured by a "reasonable competence" standard. Fritz, supra, 105 N.J. at 60-61. That standard does not require "the best of attorneys," but rather that attorneys not be "so ineffective as to make the idea of a fair trial meaningless." State v. Jack, 144 N.J. 240, 248 (1996) (citation and internal quotation marks omitted).

Here, the judge made specific findings from the testimony of trial counsel and defendant that counsel's performance was not deficient in a number of respects. Those fact-findings have substantial support in the record and will not be disturbed on appeal. Defendant has simply failed to satisfy the first prong of Strickland.

With respect to the arguments advanced by defendant pro se in Point Eight, defendant has not established the first prong of Strickland in that he did not specify what information he would have communicated to PCR counsel had counsel consulted with him. To make out a prima facie claim for post-conviction relief "when a petitioner claims his trial attorney inadequately investigated his case, he must assert the facts that an investigation would have revealed, supported by affidavits or certifications based upon the personal knowledge of the affiant or the person making the certification." Cummings, supra, 321 N.J. Super. at 170.

The issues raised by defendant in Points Four(C), (D), (E), and (F) have already been decided, Allen II, supra, 398 N.J. Super. at 259, and may not be relitigated in this appeal. R. 3:22-5.

With respect to the issue concerning the judge's recusal, the only applicable provision is Rule 1:12-1(d), which applies where a judge "has given an opinion upon a matter in question in the action." The PCR judge did previously opine that Korman's affidavit was not credible, and that certainly is the type of opinion that justifies disqualification. See J.L. v. J.F., 317 N.J. Super. 418, 438 (App. Div.) (remanding to a different judge because the original judge had found that the plaintiff's position was not credible), certif. denied, 158 N.J. 685 (1999). However, that expressed opinion related only to the very brief affidavit Korman supplied, which lacked many of the details one would expect a murder witness to express. That did not prevent the judge from fairly evaluating Korman's testimony as a whole, which we have noted is not credible even from the cold record before us. Thus, we see no error in the judge's determination that there were no grounds requiring his recusal.

Last, we consider the issue raised by defendant pro se in Point Nine, the alleged newly discovered evidence we have briefly described and quoted above. We remand the issue to the PCR judge for consideration as a motion for a new trial based on newly discovered evidence. The judge should consider not only the testimony we have briefly described above, but also any of the other testimony identified by defendant from the Mack trial, and then determine whether any of this testimony is "newly discovered" and would support an order for a new trial. The judge shall hear argument on the motion and determine whether an evidentiary hearing will assist in resolving the issues.

Affirmed in part and remanded in part for further proceedings consistent with this opinion. The remand shall be completed no later than April 29, 2011. The Appellate Division, but not necessarily this panel, retains jurisdiction.


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