NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION.

PER CURIAM.

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

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

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

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

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

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

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

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

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

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

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

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

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

In ordering a remand for an evidentiary hearing, we found no procedural bar to consideration of the mistrial issue, id. at 256, and held that "defendant has shown enough to warrant development of the facts at an evidentiary hearing before they are tested against the two-prong Strickland1 test." Id. at 257 (citing State v. Cummings, 321 N.J.Super. 154, 164 (App. Div.), certif. denied, 162 N.J. 199 (1999)). Specifically, we observed:

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

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

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

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

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

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

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

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

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

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

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

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

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

Defendant raises the following issues on appeal:

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

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

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

A judge may relieve a party from a final judgment for "newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under R. 4:49." R. 4:50-1(b). In order to justify a new trial, the judge must find that the evidence would likely change the result of the case if a new trial is granted. DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009); Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 445 (1980). Because the testimony of Korman was not credible, it cannot be said that his testimony would likely change the outcome of the case if a new trial was granted.

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

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

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

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

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

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

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

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