                        NOT FOR PUBLICATION WITHOUT THE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.



                                       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 August 28, 2017

              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)
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.

                                  2                              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



                                 3                         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).


                                       4                                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.

                                         5                              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

                                            6                                     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

                                  7                         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,

                                       8                                 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."

                                           9                                      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




                                  10                          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.

                                      11                           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.

                                   12                              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

                                          13                                   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.

                                          14                               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

                                15                              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.

                                   16                                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 two-

prong 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


                                   17                                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.




                                  18                                     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

                                      19                               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,

                                         20                                   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.




                                             21                                 A-3712-14T3
