                       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                  NOT FOR PUBLICATION WITHOUT THE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,                APPROVED FOR PUBLICATION

                                                October 8, 2013
v.
                                             APPELLATE DIVISION
L.A.,

     Defendant-Appellant.



         Submitted May 21, 2013 – Decided October 8, 2013

         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 post-

conviction relief (PCR).     See State v. L.A., No. A-4279-07 (App.
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




                                             2                                   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 first-

degree 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. A-

4071-03 (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.



                                   3                              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




                                 4                         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,




                                       5                               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




                                          6                               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




                                          7                                      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




                                            8                                    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).



                                           9                              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




                                             10                                            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.




                                          11                                  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 stepmother-

stepdaughter 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."




                                           12                                   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.




                                          13                                     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




                                            14                               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



                                   15                            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 post-
         conviction 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



                               16                        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



                               17                           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




                                          18                                  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




                                         19                               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




                                        20                                    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.]



                                        21                              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)


                               22                         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).



                                            23                                   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.



                                   24                         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




                                        25                                   A-6175-10T4
credible testimony of D.A., the testimony of L.H., and the now-

corroborated 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.




                                               26                            A-6175-10T4
