                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-3830-13T4

STATE OF NEW JERSEY,
                                     APPROVED FOR PUBLICATION
         Plaintiff-Respondent,
                                        December 3, 2015
    v.                                  APPELLATE DIVISION

WALTER A. TORMASI,

          Defendant-Appellant.
________________________________________________

         Submitted November 4, 2015 – Decided December 3, 2015

         Before Judges Fisher, Espinosa and Currier.

         On appeal from the Superior Court of New
         Jersey,   Law  Division,   Somerset County,
         Indictment No. 97-04-0234.

         Walter A. Tormasi, appellant pro se.

         Geoffrey   D.   Soriano,   Somerset    County
         Prosecutor, attorney for respondent (James
         L.   McConnell,  Assistant   Prosecutor,   of
         counsel and on the brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    In this appeal of the denial of post-conviction relief,

defendant argues that the judge erred in finding inadmissible a

thirty-eight-page document which purports to be an affidavit —

lacking its last page — authored by defendant's father in which

he takes responsibility and proclaims defendant's innocence of
the   murder       for      which    he    was    convicted.           The    judge   excluded

consideration          of    the    document      because       the    thirty-ninth          page,

which was alleged by witnesses to have contained the signature

of defendant's father and the jurat of a notary public, was

missing.         We reverse because, if sufficiently authenticated, the

document         was   admissible         pursuant      to    N.J.R.E.       803(c)(25);         we

remand, however, for further proceedings because the judge never

evaluated the sufficiency of defendant's effort to authenticate

the document through extrinsic evidence pursuant to N.J.R.E. 901.

       The       record      on     appeal       reveals      that     in     January        1998,

defendant was tried and convicted, among other things, of the

March 1, 1996 murder of his mother.                          Although sixteen years old

at the time of the murder, defendant was tried as an adult and

sentenced to a term of life in prison subject to a thirty-year

period      of    parole      ineligibility.            We     affirmed       by    way     of   an

unpublished opinion, State v. Tormasi, No. A-5530-97 (App. Div.

July 20, 2001); the Supreme Court denied defendant's petition

for certification, 171 N.J. 42 (2002).

       On July 8, 2002, defendant filed a post-conviction relief

(PCR) petition, which was supplemented on December 8, 2005 and

again       on    December        29,     2006.    By   way     of     these       submissions,

defendant argued the ineffective assistance of counsel because

of    his    trial     attorney's         performance         during    the    investigation




                                                  2                                       A-3830-13T4
stage as well as at trial.               The trial judge denied relief, and

we affirmed.     State v. Tormasi, No. A-2248-07 (App. Div. May 26,

2009).    The       Supreme    Court      denied    defendant's   petition   for

certification.       200 N.J. 474 (2009).

    Defendant filed another PCR petition on December 22, 2011.

This time defendant argued that newly-discovered evidence — what

he refers to as the "affidavit" of his father (Attila Tormasi,

Sr.) — demonstrates his innocence.                  That is, the document in

question purports to contain Attila, Sr.'s acknowledgement that

he hired a private detective to commit the murder for which

defendant was convicted.           In addition, as cogently explained by

defendant's PCR counsel at the start of the evidentiary hearing:

           [t]here's a second aspect to the claim which
           is based in part on the affidavit that
           [Attila, Sr.] paid funds to [defendant's]
           appointed counsel . . . in order that he
           [Attila, Sr.] not be implicated in the
           murder and that the defense that it was
           [Attila, Sr.] who had orchestrated the
           murder not be presented to the jury . . . .

    The judge conducted a two-day hearing limited to examining

"the significance of [the] document and whether or not it is

evidential     as    well     as   whether     or    not    [defendant's    trial

attorney] had an un-waivable conflict during the term of his

representation."       After hearing defendant's three witnesses and

the State's two witnesses, the PCR judge found, by way of a

written   decision,      that      the    document    was   inadmissible.      In



                                           3                           A-3830-13T4
denying relief, the judge determined the document "was not hand-

written, not signed, and there is no way of authenticating it,"

and described it "as a hearsay document which does not meet any

exceptions to the hearsay rule permitting it as an evidentiary

document."    The judge concluded that "[s]ince [the document] is

not evidence, it cannot be newly[-]discovered evidence."

      For those reasons, the PCR judge looked no further into the

allegations   of    the   PCR   petition,   which   was   denied   by   order

entered on April 9, 2014.       Defendant appeals, arguing:

          I. ATTILA SR.'S SELF-INCRIMINATORY AFFIDAVIT
          CONSTITUTES    NEWLY[-]DISCOVERED   EVIDENCE
          ENTITLING DEFENDANT TO THE REVERSAL OF HIS
          CONVICTIONS UNDER APPLICABLE LAW.

          II. ATTILA SR.'S UNILATERAL FEE ARRANGEMENT
          WITH DEFENSE COUNSEL CREATED AN IMPERMIS-
          SIBLE CONFLICT OF INTEREST AND DEPRIVED
          DEFENDANT    OF  EFFECTIVE  ASSISTANCE   OF
                   [1]
          COUNSEL.

We reverse and remand.

      Newly-discovered evidence of the type that would require a

new trial must be "(1) material to the issue and not merely

cumulative or impeaching or contradictory; (2) discovered since

the   trial   and     not   discoverable     by     reasonable     diligence

beforehand; and (3) of the sort that would probably change the

jury's verdict if a new trial were granted."              State v. Carter,

1
  For brevity's sake, we have not included the subparts to these
two points.



                                     4                              A-3830-13T4
85 N.J. 300, 314 (1981); see also State v. Puchalski, 45 N.J.

97, 107 (1965); State v. Artis, 36 N.J. 538, 541 (1962).                                The

Supreme Court has further counseled that such evidence "must be

reviewed with a certain degree of circumspection to ensure that

it   is    not    the    product   of   fabrication,          and,    if    credible    and

material, is of sufficient weight that it would probably alter

the outcome of the verdict in a new trial."                      State v. Ways, 180

N.J. 171, 187-88 (2004).

      There can be no doubt that another person's confession is

material     and        constitutes     the       sort   of   evidence       that    would

probably change the jury's mind.                   The PCR judge recognized this,

observing in his written opinion that "if true" the document

"places     full    responsibility           for   Frances     Tormasi's       murder    on

Attila, Sr., and exonerates [defendant]."

      Ultimately, however, defendant was denied relief because

the judge determined the document was inadmissible.                          This ruling

was based on a misinterpretation of both N.J.R.E. 803(c)(25) and

N.J.R.E. 901.

                                              I

      If    the    document     can     be    authenticated          as    Attila,   Sr.'s

statement, it is admissible. In reaching this conclusion, we

start by acknowledging that the document constitutes "hearsay"

because it purports to be "a statement, other than one made by




                                              5                                  A-3830-13T4
the declarant while testifying at the trial or hearing, offered

in     evidence       to    prove       the   truth         of    the    matter   asserted."

N.J.R.E.    801(c).           We    also      recognize           that    hearsay    "is    not

admissible except as provided" by the evidence rules or other

law.    N.J.R.E. 802.

       N.J.R.E. 803(c) provides numerous exceptions to the general

rule of hearsay inadmissibility.                       The PCR judge's decision and

the parties' arguments focus on N.J.R.E. 803(c)(25); that rule,

as relevant here, renders admissible a hearsay statement which

            was at the time of its making so far
            contrary   to  the   declarant's pecuniary,
            proprietary, or social interest, or so far
            tended to subject declarant to civil or
            criminal liability, . . . that a reasonable
            person in declarant's position would not
            have made the statement unless the person
            believed it to be true.

Even though the document fits within the parameters of this

hearsay exception, the judge relied on the exception's next and

last    sentence:          "Such    a    statement          is    admissible      against   an

accused    in     a    criminal         action       only    if    the    accused    was    the

declarant."       N.J.R.E. 803(c)(25).                 After quoting this sentence,

the judge concluded only that:

            In the present case, [defendant] does not
            allege that he authored the writing; he is
            claiming that his father Attila is the
            declarant.   Therefore, exception 803(c)(25)
            does not apply.

This conclusion was erroneous.



                                                 6                                   A-3830-13T4
     The evidence rule's last sentence, upon which the judge

relied, deals with a discrete issue not applicable here because

it only prohibits the use of a statement against interest when

the declarant is someone other than the accused and only when

offered "against an accused" in a criminal action.                           N.J.R.E.

803(c)(25).    If, for example, at defendant's criminal trial, the

prosecution    offered      another    individual's           statement   which    was

against    that   individual's         interest         and    declared   defendant

committed the murder, the last sentence of N.J.R.E. 803(c)(25)

would bar its admission.         See State v. White, 158 N.J. 230, 239

(1999)    (recognizing,      also,     the    Confrontation        Clause    problem

generated by the admission of such a statement); see also State

v. Bowser, 297 N.J. Super. 588, 598-99 (App. Div. 1997); State

v. Felton, 131 N.J. Super. 344, 350-51 (App. Div. 1974), certif.

denied,   68   N.J.   140    (1975).         Only   a    statement    made    by   the

accused may be offered against the accused through application

of this rule.     See State v. Rucki, 367 N.J. Super. 200, 206-07

n.1 (App. Div. 2004).

    The rule does not apply equally in reverse.                      An accused is

entitled to offer a statement against interest made by another,

usually for the purpose of demonstrating the guilt of another,

so long as the statement falls within the other parameters of

N.J.R.E. 803(c)(25); indeed, it is well-established that this




                                         7                                   A-3830-13T4
aspect   of    the    rule     must     "not       be   applied   mechanistically     to

defeat an accused's ability to present a defense."                            Biunno,

Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 803(c)(25)

(2015); accord Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.

Ct. 1038, 1049, 35 L. Ed. 2d 297, 312-13 (1973); State v. Brown,

170 N.J. 138, 153 (2000).

    The document in question purports to be a statement by

Attila, Sr., against his interests — in that it expresses his

responsibility for the murder of his wife — and snugly fits the

requirements of N.J.R.E. 803(c)(25).2                     And because the document

was offered by defendant and not against him, the rule's last

sentence,      upon    which      the    judge      relied,   has   no   application.

Barring an authentication problem, to which we now turn, the

document was admissible.

                                            II

    For       two    reasons      we    reject      the   judge's   conclusion      that

"there   is    no     way    of   authenticating"          the    document:   (a)    the

2
  The judge also found the document inadmissible because it was
neither signed nor handwritten.    This conclusion was erroneous
as well.    Contrary to the PCR judge's narrow view, N.J.R.E.
801(a) defines "statement" as "(1) an oral or written assertion
or (2) nonverbal conduct of a person if it is intended by him
[or her] as an assertion." Ibid. An unsigned written statement
or even — as subsection (2) recognizes — a wink, nod or point of
a finger may constitute a "statement" for these purposes. See,
e.g., State v. Simmons, 52 N.J. 538, 541 (1968), cert. denied,
395 U.S. 924, 89 S. Ct. 1779, 23 L. Ed. 2d 241 (1969); State v.
Jones, 308 N.J. Super. 15, 20, 22 (App. Div. 1998).



                                               8                              A-3830-13T4
judge's decision regarding authentication was mistakenly based

on   the   fact   that   the    document      is   not   self-authenticating

pursuant to N.J.R.E. 902(h); and (b) the judge made no findings

regarding the extrinsic evidence offered by defendant as the

means of authenticating the document pursuant to N.J.R.E. 901.

                                       A

     We start by recognizing, as the judge observed, that the

thirty-eight-page document is incomplete; the thirty-eighth page

ends mid-sentence and the document lacks a signature line, a

signature, and a jurat.        Defendant provided the testimony of his

brother    (Attila,   Jr.)     and   sister    (Sophia),    as   well     as   an

investigator who took custody of the document in December 2010

upon its discovery by Attila, Jr. soon after his father's death

on November 16, 2010.

     Defendant's siblings both testified they saw the document

at some point years after the trial.3 Attila, Jr., testified that

in 2003, when he was twenty-two years old, he confronted his

father about the document:

3
  Attila, Jr., testified he saw the document — in its complete
state, with Attila, Sr.'s signature and a notarization — in
2003. Sophia, the oldest of the three siblings, testified
Attila, Jr., showed her the document, also with a signed and
notarized thirty-ninth page. She stated that she could only
remember that she was shown the document sometime between 2000
and 2005; notwithstanding, Sophia was "one hundred percent
certain it was signed by [her] father and that it was also
notarized."



                                       9                                A-3830-13T4
            Q. And how did that conversation go? If we
            were listening to the conversation, what did
            you say and what did he say to you?

            A. I don't remember exactly what was said.

            Q. In sum and substance?

            A. But I did tell him that I found [the
            complete version of the document] and I read
            it, and he was very upset, but I asked him
            if what was contained in there was the truth
            and he said yes but that he didn't — I
            shouldn't be snooping around his stuff and
            don't mention it to anybody and he got
            pretty upset.

Sophia similarly testified that she spoke to her father about

the document she saw years earlier:

            Q. . . . You went to your father and as you
            just said —

            A. Yes, I —

            Q. — asked him why he signed this and what
            did he tell you?

            A. Yes. He — he told me that he signed it
            because it was true, and then from there he
            didn't want to talk about it.   He got very
            agitated and very, very upset.    So I just
            left it.


Both Attila, Jr., and Sophia testified they did not mention the

affidavit to defendant or anyone else; as Sophia explained, her

father "was not the type of person that liked to be doubled

crossed."




                                 10                        A-3830-13T4
    Instead      of     making        findings       about     the     credibility      of

defendant's   siblings,         the    PCR    judge       concluded    only    that    the

document could not be admitted because it "was not hand-written,

not signed, and there is no way of authenticating it."                                  We

discern from the judge's opinion that, due to the lack of either

a signature or jurat, the document was not self-authenticated.

Although   not    cited,        we     assume       the     judge    meant    that     the

authentication    problem        could       not    be      resolved    by    resort    to

N.J.R.E. 902(h), which declares that "[e]xtrinsic evidence of

authenticity as a condition precedent to admissibility is not

required with respect to . . . [d]ocuments accompanied by a

certificate of acknowledgement executed in the manner provided

by law by a notary public or other officer authorized by law to

take acknowledgements."

    We agree the document was not self-authenticated, but that

conclusion does not bar authentication through other means.

                                             B

    N.J.R.E.          901      states        that         "[t]he     requirement       of

authentication    or        identification         as   a   condition    precedent     to

admissibility is satisfied by evidence sufficient to support a

finding that the matter is what its proponent claims."                         The rule

"does not require absolute certainty or conclusive proof" — only

"a prima facie showing of authenticity" is required.                           State v.




                                             11                                 A-3830-13T4
Mays, 321 N.J. Super. 619, 628 (App. Div.), certif. denied, 162

N.J. 132 (1999); see also State v. Joseph, 426 N.J. Super. 204,

220 (App. Div.), certif. denied, 212 N.J. 462 (2012).

       As Professor McCormick observed, "[a] writing may . . . be

authenticated from a percipient witness that other connections

exist between the writing and a particular person, and it is

those connections that make that writing relevant." McCormick on

Evidence § 222 at 86 (Bourn ed., 7th ed. 2013).                   Here, defendant

provided the testimony of his siblings; they not only claimed to

have seen the document in its complete, executed and notarized

state, but they also described interactions with their then-

living father that arguably suggested his familiarity with the

document and his acknowledgement that its contents were "true."

       "The fundamental idea of authentication is to connect the

writing with the person alleged to be its author."                      In re Blau,

4 N.J. Super. 343, 351 (App. Div. 1949) (quoting 5 Wigmore on

Evidence     §    1496   at    319   (Chadbourn      rev.    1974)).      When   such

extrinsic    evidence         is   presented,    a   judge   in   his   gatekeeping

role, Konop v. Rosen, 425 N.J. Super. 391, 411 (App. Div. 2012),

may,    to       some    degree,      consider       the    credibility     of    the

authenticating witnesses.             That never occurred here.            Absent a

finding that Attila, Jr., and Sophia's testimony regarding the

purported links between the document and their late father was




                                          12                                A-3830-13T4
unworthy of belief, the judge was obliged to acknowledge the

statement appeared to be what it purported to be and leave for

the factfinder "more intense review of the document[]," Biunno,

Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on

N.J.R.E. 901 (2015) (quoted with approval in Konop, supra, 425

N.J. Super. at 411), and a weighing of the testimony of the

percipient witnesses.           Because the judge did not apply this

authentication method, we are compelled to remand.

                                      III

      We are mindful the "gatekeeper" and "factfinder" here are

one and the same. Considering that N.J.R.E. 901 "does not erect

a particularly high hurdle," United States v. Ortiz, 966 F.2d

707, 716 (1st Cir. 1992) (construing the similar Federal Rule of

Evidence 901(a)), cert. denied, 506 U.S. 1063, 113 S. Ct. 1005,

122 L. Ed. 2d 154 (1993), and considering the judge's dual role

with regard to its admission and weight, the better practice in

such a circumstance will often                warrant the admission of the

document and then a consideration by the judge, as factfinder,

as   to   whether   it    and   all   other      evidence,   warranted    post-

conviction   relief      through   the    further   application   of   Carter,

supra, 85 N.J. at 314, and Ways, supra, 180 N.J. at 188-89.                   We




                                         13                            A-3830-13T4
leave   the   matter   to   the   experienced   judge   for   his   further

consideration of these principles.4

     We lastly emphasize what we are not deciding. In responding

to this appeal, the State forcefully argues that the jury was

presented with overwhelming evidence of defendant's guilt.              That

contention is not presently relevant.           Today we consider only

whether the reasons given by the PCR judge for excluding the

document were mistaken.      They were.5

     Reversed and remanded.       We do not retain jurisdiction.




4
  Because the judge implicitly concluded that his exclusion of
the document was determinative of all other issues, we also
remand for further consideration of defendant's ineffective-
assistance contention that an unwaivable conflict arose when his
father paid defendant's trial attorney so as to keep that
attorney from presenting evidence casting blame on him (Attila,
Sr.) for the murder. The judge failed to make findings on this
issue as required by Rule 1:7-4(a).
5
  In addition, we note that the PCR judge did not address — and
the State did not argue in the trial court or here — the
timeliness of defendant's second petition, which was subject to
Rule 3:22-12(a)(2) and Rule 3:22-4(b).    Accordingly, as noted
above, we have limited our discussion to the judge's ruling on
the evidentiary issue.



                                     14                             A-3830-13T4
