dissenting.
In this appeal we focus on the denial of post-conviction relief (PCR) to defendant Richard Feaster who, in 1993 and with a shotgun at close range, executed an innocent gas station attendant for the paltry sum of $191.72. After a six-day PCR hearing that consumed more than 1,000 pages of transcripts, the PCR court issued a comprehensive and exhaustive oral opinion rejecting more than twenty assignments of error. In our review of the PCR court’s denial of relief, we have focused exclusively on defendant’s attempt to have one of the witnesses who testified against him at trial, Michael Sadlowski, recant his trial testimony. Sadlowski, who testified and was cross-examined in detail at defendant’s capital murder trial, recanted his trial testimony in a written statement when he was visited in prison by defendant’s counsel and, more to the point, when Sadlowski was without the benefit of counsel. Once brought from his prison cell to defendant’s PCR hearing pursuant to a writ, Sadlowski requested that counsel be appointed to represent him,1 a request the PCR court granted. After discussions between the prosecutor and Sadlowski’s counsel and later separate discussions between Sadlowski and his own counsel, Sadlowski’s counsel advised the PCR court that Sadlowski withdrew his recantation so as to take advantage of the statutory affirmative defense to a perjury prosecution available to those who retract a false statement “in the course of the proceeding or matter in which it was made prior to the termination of the proceeding or matter without having caused irreparable harm to *266any party.” N.J.S.A. 2C:28-1d. Sadlowski’s counsel also advised the PCR court that Sadlowski would assert the privilege against self-incrimination at the PCR hearing. The PCR court permitted the retraction and accepted Sadlowski’s assertion of the privilege against self-incrimination.
The majority today correctly reaffirms the role of trials as a “search for truth,” ante, 184 N.J. at 251, 877 A.2d at 239. However, in doing so, it foists on the State a needlessly harsh Hobson’s choice: either grant a witness use and derivative use immunity or suffer the suppression of that witness’ trial testimony. Because the majority’s analysis concerning the import and effect of Sadlowski’s recantation and the withdrawal of his recantation is flawed factually, procedurally, legally and as to its remedy, I respectfully dissent.
I.
A.
One need not dwell on the facts supporting defendant’s conviction and sentence; these are exhaustively set forth in our earlier affirmance. State v. Feaster, 156 N.J. 1, 716 A.2d 395 (1998) (Feaster I), cert. denied, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed.2d 306 (2001). It is sufficient to note that, “[t]he primary defense strategy was characterized by a sustained attack on the credibility of key State witnesses.” Feaster I, supra, 156 N.J. at 27, 716 A.2d 395. With particular regard to Sadlowski,
the defense highlighted Sadlowski’s use of drugs and alcohol, and elicited on cross-examination his admission that he was “hammered” on the night of the murder. He testified that he did not hear defendant’s incriminating statement allegedly made near the pool table at the Columbia Cafe; Sadlowski also did not recall Shiplee’s accusation made against defendant back at the apartment. The defense also stressed the consideration Sadlowski received from the State for his testimony, and the discrepancies in the three separate statements he had given to authorities.
[Id. at 28, 716 A.2d 395.]
Based on all of the evidence presented, defendant was convicted of “purposeful-or-knowing murder by his own conduct, N.J.S.A. 2C:11-3a(1) and/or (2); felony murder, N.J.S.A. 2C:11-3a(3); con*267spiracy to commit murder, N.J.S.A 2C:5 — 2; first-degree robbery, N.J.S.A 2C:15 — 1; conspiracy to commit armed robbery, N.J.S.A. 2C:5 — 2; possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and possession of a sawed-off shotgun, N.J.S.A 2C:39-3b,” and was sentenced to death. Feaster I, supra, 156 N.J. at 17, 716 A.2d 395. On direct appeal as of right to this Court, we affirmed defendant’s conviction and sentence. Ibid. As part of that appeal, defendant requested proportionality review for his death sentence pursuant to N.J.S.A. 2C:11-3e. Id. at 93, 716 A.2d 395. That review was granted and we found “no disproportionality in defendant’s sentence of death.” State v. Feaster, 165 N.J. 388, 393, 757 A.2d 266 (2000) (Feaster II), cert. denied, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed.2d 306 (2001).
On March 19, 2001, the Supreme Court of the United States denies defendant’s petition for a writ of certiorari. On March 26, 2001, defendant filed a timely petition for post-conviction relief under R. 3:22-1 to -12,2 originally listing twenty-two assignments of error in the conduct of his trial.3 In preparation for the hearing on defendant’s petition for post-conviction relief, on July 10, 2001, defendant’s PCR counsel sought to interview Sadlowski. That interview resulted in a recantation statement, which was hand-written by defendant’s PCR counsel, purportedly signed by Sadlowski, and is set forth at length in the majority opinion, ante, 184 N.J. at 245, 877 A.2d at 235. On April 8, 2002, almost nine months after securing Sadlowski’s written recantation and almost one year after filing his original petition for post-conviction relief, defendant filed a motion for a new trial based on newly discovered *268evidence pursuant to R. 3:20-2, which provides that “[a] motion for a new trial based on the ground of newly discovered evidence may be made at any time.”4
The substance of Sadlowski’s recantation statement, as well as the manner in which it was secured, form the basis of the dispute here. Because the substance of Sadlowski’s recantation is set forth within its four comers, it requires no further explanation. The manner in which that recantation was secured, however, does call for closer analysis. Millee Gutierrez, a senior investigator from the Office of the Public Defender assigned to assist in defendant’s petition for post-conviction relief, was asked to locate Sadlowski, who was then an inmate at Bayside State Prison. Gutierrez and one of defendant’s PCR counsel went to interview Sadlowski. Gutierrez explained what happened:
Q. At some point in the interview he agreed to give us a written statement to what he had told us?
A. Yes.
Q. I then borrowed a pad from you, a public defender pad?
A. Yes.
Q. I wrote, essentially, what Mr. Sadlowski was telling me down on the pad?
A. Yes.
Q. Mr. Sadlowski went over it and read it?
A. Yes, he did.
Q. We asked him to sign it?
A. Yes.
Q. He signed it of his own free will?
A. Yes, he did.
Q. Let me ask you to turn to the final page of D-70 [the written recantation], ask you if you see the signature of Mr. Sadlowski?
*269A. Yes, I do.
Q. Did you then witness that signature?
A. Yes, I did.
Q. Did anybody twist his arm to give this statement?
A. No.
Q. He gave it willingly?
A. Yes, he did.
Q. Told us it was the truth, correct?
A. Yes.
Gutierrez then testified that, during a later interview, Sadlowski reaffirmed his recantation:
Q. Yes, by the way, did we note you had a further interview of Mr. Sadlowski about a year later?
A. Yes.
Q. At which time myself, [another of defendant’s PCE counsel], and you met again with Mr. Sadlowski?
A. Yes.
Q. At Bayside?
A. Yes.
Q. Did he then say anything about this statement?
A, No. He said that he stood by it.
As the prosecution noted in its cross-examination of Gutierrez, neither of these two interviews of Sadlowski were tape-recorded.
Acknowledging that SadlowsM’s retraction of his sworn trial testimony would expose him to a prosecution for perjury, the PCR court inquired directly of defendant’s PCR counsel “whether anybody advise[d] Mr. Sadlowski of the fact that he might be placed in jeopardy.” Defendant’s PCR counsel responded:
I can make representations about that. That is that that subject did come in. We informed Mr. Sadlowski that we couldn’t give him legal advise. It he wanted to see counsel before he gave us any statement, then that was his privilege. He did not want to do so.
He fully understood that, obviously, it was inconsistent with his trial testimony. He recognized the fact that that might put him in some form of legal jeopardy. Nevertheless, he wanted to give the [statement].
*270We didn’t undertake to advise him legally. We specifically told him that that’s at odds with what our representation of the defendant is.5
Immediately on the heels of those representations, the PCR court noted that “[g]iven the representation, the first time [Sadlowski] had [legal] representation he exercised his privilege [against self-incrimination,]” and ultimately held that, “[w]hen [Sadlowski] got to court this past summer the first thing he did when he was called upon to testify was ask for an attorney.” (emphasis supplied).6
When Sadlowski was called to testify after he was represented by counsel, his counsel informed the PCR court that “Mr. Sadlowski [was] going to invoke his Fifth Amendment privilege to any and all questions that might be asked of him[,]” and that “[i]n addition, pursuant to N.J.SA 2C:28-2(d) [sic], any statement that *271[ ] has been proferred to this Court is withdrawn and retracted.” A verbal skirmish then ensued, with defendant’s PCR counsel insisting that only Sadlowski himself could withdraw his recantation and, therefore, Sadlowski would have to testify, at least to that limited extent. After the PCR court agreed to limit Sadlowski’s testimony to the withdrawal of his recantation and his assertion of his privilege against self-incrimination, Sadlowski, questioned by his own counsel, testified as follows:
Q. Mr. Sadlowski, Michael—
A. Yeah.
Q. ■ — did you have the opportunity to speak with me concerning your statement?
A. Yeah.
Q. Did you make a request to me to withdraw that statement on the record?
A. Yeah.
Q. Is it your desire, then, to retract, withdraw that statement, is that correct, sir?
A. Yes.
Q. Did anybody force you, threaten you to withdraw this statement ?
A. No.
[(emphasis supplied).]
Defendants PCR counsel did not contemporaneously object to this line of questioning or the procedure that was followed.7 Instead, it was only after Sadlowski’s withdrawal of his recantation and assertion of his Fifth Amendment privilege were complete that defendants PCR counsel sought to have the PCR court require that Sadlowski continue testifying, despite Sadlowski’s now twice asserted privilege against self-incrimination. Defendants PCR counsel argued that defendants interest must have *272primacy because defendant awaits execution and, hence, anyone else’s privileges must give way tb defendants needs. The PCR court rejected that notion, correctly observing that “I cant go picking and choosing whose rights I’m going to violate because one has a more permanent alternative than the other. That cant be.”
Defendants PCR counsel then commenced the inquiry on which the majority grounds our review:
[DEFENSE COUNSEL]: Judge, in that [vein], may we inquire as to whether or not there’s been a threat of prosecution by the Gloucester County Prosecutors Office?
THE COURT: I don’t think it matters. I don’t think it matters. If he is aware that he is in criminal jeopardy, he doesn’t have to wait until he is prosecuted to invoke his right.
[DEFENSE COUNSEL]: My question is different than that. Its not whether or not he just has an apprehension of prosecution, but whether or not he’s been actively advised that he will be prosecuted.
THE COURT: I don’t think its relevant. You have to ask someone else that question. Obviously, this witness is not going to testify to that.
[DEFENSE COUNSEL]: If we might, can we get a representation from the state as to whether or not such a bit of [advice] has been given to Mr. Sadlowski or his counsel?
[PROSECUTOR]: Judge, when I talked to — when I talked to [Sadlowski’s counsel] I gave him [Sadlowski’s] statement and I said this is his statement. If he testifies the way he does, then there are considerations. That’s all I said. Then [Sadlowski’s counsel] took that statement and talked to his client. I don’t know what he told him. So, there is no threat.
THE COURT: Nor should you know what [Sadlowski’s counsel] discussed with his client.
[DEFENSE COUNSEL]: I’m taking the assistant prosecutors representations that there are considerations to mean that the inference was that should he testify pursuant to the affidavit he would be prosecuted. That’s all I’m looking for, Judge.
[PROSECUTOR]: That’s what I said.
THE COURT:I don’t know what that means, but.
[DEFENSE COUNSEL]: Just to pin it down, Judge, that in conversation with the witness, counsel, prior to his testimony, the assistant prosecutor advised him that should Mr. Sadlowski testify pursuant to his affidavit or certification he’d be prosecuted for perjury. I think we should have that spread on the record.
[PROSECUTOR]: That’s not what I said. There are considerations.
THE COURT: That wasn’t what I heard.
*273[DEFENSE COUNSEL]: I’m trying to get at what that means, there are considerations.
THE COURT: It may sound mysterious. If you want to call this gentleman as a witness to determine what it was, maybe that’s another recourse. With respect to this particular witness, he invoked his rights, withdrawn his statement. You can argue what the implications of that are if you like, but I’m not going to require him to participate anymore.
[DEFENSE COUNSEL]: I don’t think we need his participation for that.
THE COURT: He being Mr. Sadlowski.
[DEFENSE COUNSEL]:Ill accept [the prosecutors] general representations. I don’t feel I need to place her on the stand under oath. I want to understand here today, correct me if I’m wrong, that the representation was made, inferentially or otherwise, to Mr. Sadlowski’s attorney that should he testify in accordance with his affidavit the prosecutor would consider prosecuting him for perjury.
THE COURT: I’m not sure that that was said. I want to be fair to the record, I want to be fair to everyone else. [Sadlowski’s counsel] is an experienced counsel. I don’t think he needs [the prosecutors] suggestion as to anything, nor would he wait for it.
Let me not speak for you, [Sadlowski’s counsel], to advise his client in accordance with what his jeopardy might be.
Rejecting the suggestion advanced by defendants PCR counsel that the State grant Sadlowski immunity, the prosecutor made clear that “[tjhere was nothing that I said to [Sadlowski’s counsel] to strongarm him into telling his client. That conversation was probably a two-second conversation. Absolutely nothing from the state that was inappropriate as to what I said to [Sadlowski’s counsel].” The PCR court then noted the quandary in which Sadlowski had been placed, observing that
[i]t seems to me the witness [Sadlowski], it may be you [defendants PCR counsel] in obtaining the statement, somebody has placed this witness in jeopardy. I don’t know who it was, but somebody placed him in jeopardy. Whether you knew about it or whether, I assume, he signed this document, whether or not he knew that is another matter.
Six days later, at the continued hearing date, defendants PCR counsel ultimately moved “to compel the continued testimony of witness Michael Sadlowski.” Relying on State v. DeCola, 33 N.J. 335, 164 A.2d 729 (1960), defendants PCR counsel urged that the PCR court examine the basis of Sadlowski’s assertion of the privilege against self-incrimination before ruling whether Sadlow*274ski would be required to testify further. The PCR court rejected this end-run:
I’m satisfied that the defense is attempting to do indirectly what it cant do directly, that is, require Mr. Sadlowski to testify over his invoking his privilege to remain silent. He was advised by counsel.
I suspect at the [ ] moment he arrives and I have him start making statements about why he doesn’t want to give his statement [of retraction], or you want to cross-examine him on that issue, the problem will become even broader.
It appears on its face he invoked his privilege. I think its clear on its face as to why he invoked his privilege. With respect to his subjection to a possible peijury charge, his counsel invoked it. His counsel insisted that he wished to not only invoke the privilege, but withdraw the statement from consideration.
Pursuant to the statute, that being the case, I don’t have to require Mr. Sadlowski to testify at this proceeding. So I’m going to deny the application.
In a thoughtful, forty-one page oral opinion, the PCR court denied defendants petition for post-conviction relief as well as his motion for a new trial. With respect to defendants motion for a new trial on the issue of Sadlowski’s recantation and the withdrawal of his recantation, the PCR court made the following specific findings:
Sometime in 2001 when post-conviction relief was first filed, the defense counsel visited Mr. [Sadlowski] in jail, spoke to him, and obtained from him a statement, which I included and attach for the record because I want a reviewing court to have its availability; although I did not consider it in my findings. He made a statement saying that his original statements at trial were not true.
When he got to court — it was signed by an investigator. When he got to court this past summer the first thing he did when he was called upon to testify was ask for an attorney. This is a witness who already [is] spending time in jail asking for an attorney. Which leads the Court to the inescapable conclusion that this witness[] knew he had some criminal exposure, knew he had problems. So he wanted an attorney to discuss it.
The Court granted a postponement with respect to his testimony, allowing counsel to contact him. He was contacted and interviewed by extremely competent counsel, whose reputation in this county, in South Jersey as well, [is] well known in criminal courts. And at the time he was represented for testimony he relied upon his Fifth Amendment Privilege.
Mr. Sadlowski’s appointed counsel then indicated that he wished to withdraw that [recantation] pursuant to statute so that he would not be exposing himself to any criminal jeopardy because of the existence of that statement recanting his original testimony.
*275Counsel objected to that, requesting the Court to give limited immunity to the defendant so that he could [give] testimony with respect to that recantation. That was a specific circumstance involving Mr, Sadlowski. The implications, however, [of] that argument, in thinking about it further, just seem to me to be so broad and overpowering that it would invite testimony at a trial, and any time thereafter anybody can come in under a grant of immunity to say anything they wanted. Which means that the original testimony, basically, is worthless. Its worthless as a means of allowing the state to utilize witnesses and plea offers in exchange for testimony, because it would insulate that person, once they completed their obligation, from any liability to merely recant later on, thereby throwing the entire system into a state of chaotic disarray.
In this particular instance, however, having consulted with counsel, this witness]] knew he had a problem once he appeared in court, having given that original recanting statement.
The prosecutor indicated that if the [witness] did in fact testify there were going to be some considerations. Clearly, the considerations that the prosecutor was [alluding] to was the possibility of perjury charges, of which this witness knew before the prosecutor — weeks before the prosecutor even said that, because he asked for an attorney from the get-go. Obviously implying, or inferring, that he knew that there were going to be considerations with respect to his different testimony, his recanting statement and the original testimony.[8]
Defense counsel made much of the fact that the prosecutor had suggested considerations, implying that there was something improper about the prosecutor suggesting that there would be charges brought or hinting at it. I’m not sure it was ever actually said. I certainly got the import of the implication. And I suspect the witness got it as well. But it should have been obvious on its face that that was a natural course once the witness testified contrary to the original trial testimony.
That, again, did not raise any particular problem. Mr. Sadlowski is a state prisoner. His motivations for wanting to execute a recanting statement could be legion. I don’t think that impacted on this petitioners rights in any fashion. That was a decision made by a witness to protect himself. I think he had a right to protect himself. I think he took steps to protect himself. In further consideration his motivation would have exposed him to further criminal liability.
Counsel at one point suggested that I weigh the seriousness of his exposure to the petitioners exposure. I think I suggested on the record at that point that that *276would be an improper consideration for me to make since everyone’s rights had to be determined in their own context.
Having said that, I don’t think that the existence of that note of recantation plays an impact, plays a role in these proceedings in any fashion. They were withdrawn properly pursuant to the statute. I’m satisfied that the Court need give no further consideration to that issue.
[(emphasis supplied).]
This appeal followed.
B.
The tenor and flavor of the proceedings before the PCR court were fundamentally different from the description provided by the majority. The conclusion that “the prosecutor substantially interfered with Sadlowski’s decision to testify and, therefore, denied defendant a witness who might have supported his claim that he was wrongly convicted and sentenced to death[,]” ante, 184 N.J. at 240, 877 A.2d at 232, stands in stark contrast with Sadlowski’s decision, on the advice of his own counsel and without influence by the prosecutor, to withdraw his recantation — thereby taking advantage of the safe harbor against perjury prosecutions provided by N.J.S.A. 2C:28-1d — and assert his privilege against self-incrimination.
In this context, it also must be noted that the procedural posture described by the majority, that this issue is cognizable as part of an appeal from a denial of post-conviction relief, is incorrect. As noted, defendants application concerning Sadlowski’s recantation was made in the context of a motion for a new trial based on newly discovered evidence,9 and not a petition for post-conviction relief. The well-established standard for relief on a motion for a new trial based on newly discovered evidence is that
the new evidence 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 *277the jury’s verdict if a new trial were granted. All three tests must be met before the evidence can be said to justify a new trial.
[State v. Carter, 85 N.J. 300, 314, 426 A.2d 501 (1981) (citations omitted) (emphasis supplied).]
That Sadlowski’s post-trial recantation is nothing more than “impeaching or contradictory” to his trial testimony brooks no argument and, hence, cannot meet the first and threshold test in the determination of whether new evidence is “newly-discovered evidence” sufficient to justify a new trial. See ibid. It is precisely because of the “more stringent” test we apply for “newly discovered evidence,” ibid., as the majority correctly acknowledges,10 ante, 184 N.J. at 264-65, 877 A.2d at 247, that we “generally regard recantation testimony as suspect and untrustworthy [and consequently, the burden of proof rests on those presenting such testimony to establish that is it probably true and the trial testimony probably false.” State v. Carter, 69 N.J. 420, 427, 354 A.2d 627 (1976) (citations omitted). We have consistently held that
[t]he test for the judge in evaluating a recantation upon a motion for a new trial is whether it casts serious doubt upon the truth of the testimony given at the trial and whether, if believable, the factual recital of the recantation so seriously impugns the entire trial evidence as to give rise to the conclusion that there resulted a possible miscarriage of justice. His first duty is, therefore, to determine whether the recanting statement is believable.
[Ibid, (citing State v. Puchalski, 45 N.J. 97, 107-08, 211 A.2d 370 (1965)).]
The PCR court found that Sadlowski’s “motivations for wanting to execute a recantation could be legion.” That finding, coupled with the PCR courts rejection of Sadlowski’s recantation as a whole, leads to the conclusion that the PCR court did not find Sadlowski’s recantation believable. Our inquiry should proceed no further.
That result does not change even if one considers this application within the context of a petition for post-conviction relief. We *278recently held that, while “we are not bound by and give no deference to the legal conclusions of the PCR court[,] ... we give deference to the trial courts factual findings ... when supported by adequate, substantial and credible evidence.” State v. Harris, 181 N.J. 391, 415, 859 A.2d 364 (2004) (citations and internal quotation marks omitted). The uncontroverted facts are that the State neither threatened nor forced Sadlowski to withdraw his recantation: in response to the direct question “Did anybody force you, threaten you to withdraw this statement?,” Sadlowski’s response was a straightforward and unequivocal “No.” Coupling Sadlowski’s response with the uncontested finding that Sadlowski’s recantation withdrawal was the product of his own concerns and discussions with his counsel, the conclusion that Sadlowski acted as a result of some form of blameworthy prosecutorial interference simply crumbles.
Regardless of whether viewed as a motion for a new trial based on newly discovered evidence or as a petition for post-conviction relief, the construct founded on the claim that “the prosecutor substantially interfered with Sadlowski’s decision to testify” simply is without basis in this record. For that reason, the decision today is, at its core, flawed.
II.
A.
When subjected to scrutiny, the majority’s legal analysis fares no better. According to the majority, because “the prosecutor substantially interfered with Sadlowski’s decision to testify,” we must fashion a legal remedy for this perceived wrong. According to the majority, the remedy is straightforward: the prosecution may either grant immunity to Sadlowski and allow him to testify to his hearts content, or suffer the pain of having the PCR court strike Sadlowski’s trial testimony in its reconsideration of defendants petition for post-conviction relief and motion for a new trial. Ante, 184 N.J. at 264-65, 877 A.2d at 247.
*279No New Jersey precedent stands for the proposition that prosecutorial interference with a witness testimony warrants a grant of immunity. In fact, every decision relied on by the majority arose within the context of prosecutorial misconduct during a trial on the merits and then only as a remedy of last resort, and not in the context of a post-trial motion for a new trial. See United States v. Golding, 168 F.3d 700 (4th Cir.1999); United States v. Vavages, 151 F.3d 1185 (9th Cir.1998); United States v. Lord, 711 F.2d 887 (9th Cir.1983); United States v. Morrison, 535 F.2d 223 (3rd Cir.1976); United States v. Thomas, 488 F.2d 334 (6th Cir.1973); State v. Nessim, 587 So.2d 1344 (Fla.Dist.Ct.App.1991); People v. Shapiro, 50 N.Y.2d 747, 431 N.Y.S.2d 422, 409 N.E.2d 897 (1980). Although the majority characterizes the prosecutors actions here as “unseemly,” ante, 184 N.J. at 260, 877 A.2d at 244, it tacitly concedes the point when it acknowledges that “the PCR prosecutor may have acted in good faith.” Id. at 261, 877 A.2d at 245. Yet, to reach its ultimate conclusion, the majority must east that notion aside because, absent a finding that there was prosecutorial misconduct here, a necessary condition precedent to relief even under the majority’s construct, the majority’s conclusion cannot be justified. More to the point, any suggestion that the majority is simply applying a universally accepted precept that mandates an immunity grant must be dispelled for that, too, is in error. See, e.g., United States v. Simmons, 699 F.2d 1250 (D.C.Cir.), cert. denied, 464 U.S. 835, 104 S.Ct. 121, 78 L.Ed.2d 119 (1983).
There was no sustainable allegation of prosecutorial misconduct in this case. Defendant had the due process benefit of a lengthy and exhaustive trial during which Sadlowski testified and was cross-examined vigorously and without reservation by experienced trial counsel.11 That trial was reviewed exhaustively by this Court *280on direct appeal and, in two separate comprehensive opinions, defendants conviction and sentence were sustained and his penalty was found to be proportionate. Defendant sought review from the Supreme Court of the United States, which also was denied. Now, and only in the context of his motion for a new trial based on newly discovered evidence, defendant claims that somehow his original conviction was tainted because, once Sadlowski had the benefit of independent counsel, he withdrew an uncounseled recantation of his trial testimony eight years after the trial testimony was given.
What defendant peddles here is the proverbial worthless bill of goods. Defendant, through his counsel, persuaded Sadlowski, an incarcerated and uncounselled state prisoner, to recant his trial testimony. When Sadlowski realized the position in which defendant had placed him — a realization that occurred weeks before the prosecutor made any reference to “considerations” in a discussion with Sadlowski’s counsel — Sadlowski sought and received the advice of counsel. Based on that advice, Sadlowski withdrew his recantation and invoked his privilege against self-incrimination. The PCR court had it right: allowing a witness to negotiate a deal with the prosecution in exchange for testimony against another and then to recant that testimony with impunity is plainly irresponsible and would “throw[ ] the entire system into a state of chaotic disarray.” That is behavior no ordered system of justice can allow.
*281B.
Even if one were to assume that there is factual support in this record for the result the majority reaches, that there is no procedural impediment to applying the legal standard the majority advances, and that the PCR court erred in refusing to consider SadlowsM’s testimony or require that he be immunized, Sadlowski’s recantation and withdrawal nonetheless must be reviewed through the prism of harmless error. At trial, “[a]ny error or omission that does not prejudice a substantial right shall be disregarded.” R. 1:7-5. In contrast, on appeal, “[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result.” R. 2:10-2; see also State v. Spruell, 121 N.J. 32, 42, 577 A.2d 821 (1990).
There can be no doubt that, even had the prosecutor overtly threatened Sadlowski with a perjury prosecution if he testified before the PCR court consistent with his recantation statement, Sadlowski still would have withdrawn his recantation and asserted his Fifth Amendment privilege for a self-evident reason: by the time he was finally called to testify before the PCR court, Sadlowski was represented by his own, independent counsel who would not and did not place Sadlowski in jeopardy of yet another prosecution. Even if one assumes either extreme — either that there was absolutely no mention of anything from the prosecutor or that there was an outright, overt and malicious threat from the prosecutor — the result would have been the same as that which occurred here. Sadlowski would have withdrawn his recantation and he would have asserted his privilege against self-incrimination. Therefore, even if one concurs in the majority’s analysis that results in a finding of prosecutorial interference with Sadlowski, those actions were harmless error.
C.
Alternatively, if one assumes that there is factual support in this record for the result the majority reaches, that there is no *282procedural impediment to applying the legal standard the majority advances, that the PCR court erred in refusing to consider Sadlowski’s testimony or require that he be immunized, and that the error was not harmless, the remedy crafted by the majority is not among those this Court has the authority to, or should, grant. The Legislature has made it clear that the grant of testimonial immunity is a discretionary function of the executive, not of the judiciary. N.J.S.A. 2A:81-17.3 requires a written request from “the Attorney General or the county prosecutor with the approval of the Attorney General” as a necessary pre-condition to a court having the basic power to “order [a person who refuses to answer a question or produce evidence of any other kind on the ground that he may be incriminated thereby].”12
Our Constitution explains that
[t]he powers of the government shall be divided among three distinct branches, the legislative, executive, and judicial. No person or persons belonging to or constitute ing one branch shall exercise any of the powers properly belonging to either of the others, except as expressly provided in this Constitution.
[N.J. Const, art. III, ¶ 1.]
“The doctrine of separation of powers is a fundamental principle of our State government.” Communications Workers of Am. v. Florio, 130 N.J. 439, 449, 617 A.2d 223 (1992). And, Article III, paragraph 1 of the New Jersey Constitution “contemplates that each branch of government will exercise fully its own powers without transgressing upon powers rightfully belonging to a cognate branch.” Knight v. Margate, 86 N.J. 374, 388, 431 A.2d 833 (1981). In a conceptually indistinguishable context — whether the executive has the discretion to charge a person suspected of a criminal offense — we made clear that “[t]he constitutional princi*283ple of separation of powers discourages judicial review of the decisions of the executive branch of government.” State v. Di Frisco, 118 N.J. 253, 265, 571 A.2d 914 (1990); see also In re Yaccarino, 101 N.J. 342, 353, 502 A.2d 3 (1985) (holding that “[a]ny decision by the Attorney General’s office not to present this matter to a grand jury involves a discretionary determination by the executive branch”). Simply said, the discretionary power to grant immunity rests exclusively in the executive, and not the judiciary. If the executive chooses to exercise that power, our courts are required to issue an order of immunity. In the absence of that election by the executive, our courts are powerless to grant immunity.
The correctness of the separation of powers limitation on this Court’s power to grant immunity is not disputed by the majority. It is in tacit acknowledgement of that limitation that the majority does not directly order the grant of immunity in this case but, instead, gives the State the “choice” of either granting Sadlowski immunity or suffering the loss of Sadlowski’s trial testimony in its entirety. Ante, 184 N.J. at 264-65, 877 A.2d at 247. That procedure seeks to accomplish indirectly what cannot be done directly. Acknowledging that the State has already refused to grant Sadlowski testimonial immunity, ante, 184 N.J. at 247, 877 A.2d at 237, the majority asserts that it “will not compel the State to grant Sadlowski testimonial immunity. If it does not, however, [the majority] direet[s] the PCR court to disregard Sadlowski’s trial testimony in full.” Ante, 184 N.J. at 264, 877 A.2d at 247. There is no basis for that result.
Even if this Court has the inherent power to grant immunity, no prior authority from this Court, and singularly few cases from our lower courts, even address that proposition. That paucity of authority alone is more than sufficient cause to tread lightly. Indeed, only one case from our Law Division even purports to recognize that our courts have “the inherent power to grant use immunity to a defense witness in order to vindicate both the witness’ Fifth Amendment rights and the defendant’s due process *284rights.” State v. Summers, 197 N.J.Super. 510, 514, 485 A.2d 335 (Law Div.1984). Yet, even in that case the request for judicial immunity was denied. The court explained that “[t]he availability of such relief is limited only to those appropriate circumstances when it is truly required by due process.” Id. at 516, 485 A.2d 335. The court nonetheless held that “the requested immunity is an extraordinary one, which should only be granted in the clearest of circumstances. Defendant’s claim does not approach the required standards.” Id. at 518, 485 A.2d 335. Less than one month after State v. Summers was approved for publication, the Appellate Division explicitly rejected its reasoning, explaining that
[a] trial court has recently stated that a judge in certain circumstances may be required by due process considerations to grant a witness called by a defendant use immunity. But prior cases indicated that a judge does not have power to grant me immunity. Rather the procedure for a witness to obtain such immunity is statutory.
[State v. Jordan, 197 N.J.Super. 489, 504 n. 5, 485 A.2d 323 (App.Div.1984) (citations omitted) (emphasis supplied).]
See also State v. Cito, 213 N.J.Super. 296, 301-02, 517 A.2d 174 (App.Div.1986), certif. denied, 107 N.J. 141, 526 A.2d 203 (1987) (describing view that “court has inherent power to grant use immunity to a defense witness who claims the Fifth Amendment privilege” as a “minority position” that does not “prevail[ ] in the State of New Jersey”).
It cannot be said more plainly: there simply is no precedent for the extraordinary step the majority takes today and, to the contrary, every precedent in this State specifically eschews what this Court orders.
D.
That, however, does not entirely answer the issue before us. If, as is assumed here, there is a factual foundation for requesting relief, there is no procedural impediment for requesting relief, and there is legal authority for granting relief, the proper form of relief nevertheless must be fashioned. Unlike the “choice” adopted by the majority, and assuming for these purposes only *285that any relief at all is warranted, that relief should take the form of a remand to require that the PCR court develop a complete record by taking all of SadlowsM’s testimony — his trial testimony, his recantation, and the withdrawal of his recantation — into account in determining whether defendant’s conviction and sentence, as earlier affirmed by this Court, are constitutionally infirm. Assuming relief is warranted, it is only against the backdrop of a full and complete record that defendant's new trial claim can be fairly adjudged; the remedy adopted today does not achieve that result.
III.
For the reasons detailed above, I respectfully dissent.
For remandment — Chief Justice PORITZ, and Justices LONG, LaVECCHIA, ZAZZALI, ALBIN and WALLACE — 6.
Dissenting — Justice RIVERA-SOTO — 1.
I assign neither significance nor praise to the fact that it was defendant's PCR counsel who only then advised the Court that Sadlowski wished to have counsel assigned to him. Once aware of the circumstances, I brook no doubt that the PCR court sua sponte would have assigned counsel to Sadlowski.
Under R. 3:22 — 12(b), "[i]n cases in which the death penalty has been imposed, defendant's petition for post-conviction relief must be filed within thirty days of the denial of certiorari or other final action by the United States Supreme Court in respect of defendant's direct appeal."
By a supplemental submission, the absolute number of defendant's issues increased. However, because of significant overlap, it is not altogether clear whether these added issues actually increased the tally of defendant's substantive assignments of error. It is sufficient to note that defendant's initial petition for post-conviction relief, including exhibits, totaled 156 pages.
There is no explanation in the record for the nine month delay between defendant securing Sadlowski’s recantation and the filing of his motion for a new trial based on that recantation. Without dwelling on the obviously tactical reasons for that delay, the salient fact here is that defendant himself recognized that an attempt to raise Sadlowski's recantation as newly discovered evidence within the context of his petition for post-conviction would have been time-barred and, hence, defendant selected the only procedural vehicle available to him: a motion for a new trial.
I express no view on the propriety of the procedure employed by defendant’s PCR counsel in securing the recantation statement from Sadlowski. Suffice it to note that, had this attempt been made in the setting of a civil lawsuit, counsel would have been obliged, as a matter of professional ethics, to make certain both that Sadlowski understood that counsel was interested in the outcome and that Sadlowski did not misunderstand counsel's role. R.P.C. 4.3. This obligation is underscored further by contrasting Sadlowski's interview with the interview of a corporate employee who may be part of "control group” in connection with a civil lawsuit; that latter setting clearly requires the presence of counsel. In re Opinion 668 of the Advisory Committee on Professional Ethics, 134 N.J. 294, 633 A.2d 959 (1993). Similarly, in a purely civil context, recently "[w]e stressfed] that while a commercial party does not have to act with benevolence towards an opposing party, it cannot behave inequitably.” Brunswick Hills Racquet Club, Inc. v. Route 18 Shopping Ctr. Assocs., 182 NJ. 210, 231, 864 A.2d 387 (2005) (footnote omitted). I see no principled reason those requirements should not apply with equal force here.
By way of contrast, had the roles been reversed and the questioning of Sadlowski been carried out by agents of the State, we likely would have required that the statement be preceded by the explanation and waiver of Sadlowski's rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966): that Sadlowski had the right to remain silent; that if he surrendered that right, what he said could be used against him; that he had a right to have counsel present during either of those interviews; and that if he could not afford counsel, counsel could be appointed free of charge.
See footnote 1, supra, 184 N.J. 265, 877 A.2d at 247.
Not only was there no contemporaneous objection to the procedure that allowed Sadlowski to be questioned by his own counsel, there was no objection to that procedure raised in this appeal. For those reasons, there is no basis for the conclusion that "the PCR judge never should have permitted [Sadlowski’s counsel], an attorney who did not represent a party in the case, to question a defense witnessf,]’’ ante, 184 N.J. 248, 877 A.2d at 237, or that the PCR court "then compounded that error by accepting Sadlowski's testimony after he invoked the privilege as a shield against cross-examination.” Id. at 249, 877 A.2d at 238.
The chronology of events is clear: counsel was appointed to represent Sadlowski, that assigned counsel then met with the prosecutor — when the prosecutor provided a copy of Sadlowski's recantation to assigned counsel and when the "there will be considerations” statement was made — and later assigned counsel met with Sadlowski. Because we must encourage fairness in communication among counsel, R.P.C. 3.4, I cannot subscribe to a process that reduces discussion among counsel to secretive winks and nods on pain of an allegation of interference.
Indeed, had defendant filed his motion for a new trial on any basis other than newly discovered evidence, it would have been time-barred. R. 3:20-2.
Albeit, by its reference to State v. Ways, 180 N.J. 171, 187-89, 850 A.2d 440 (2004), the majority acknowledges this difference only within the context of a petition for post-conviction relief, and not within its more proper context here as a motion for a new trial based on newly discovered evidence.
As described in the biography of defendant’s trial counsel prepared by his law firm and made part of the State's appendix, defendant’s trial counsel is highly experienced and respected; a former "assistant prosecutor in the Office of the Camden County Prosecutor" and the former "Assistant Trial Chief and Career Criminal Prosecutor in the Office of the Cumberland County Prosecutor, *280where he supervised litigation!;]” has "defended 8 capital murder cases, trying 5 of them to completion!;] has defended criminal RICO cases in State and Federal Court!; and] has extensive trial experience in defending white-collar crime, computer sabotage, grand jury investigations, and complex civil litigation." That biography also notes that defendant’s trial counsel is a "Trustee of the Association of Criminal Defense Lawyers of New Jersey, a member of the Camden County Criminal Practice Committee, and a lecturer for the Institute] of Continuing Legal Education of New Jersey." Although defendant's petition for post-conviction relief asserted ineffective assistance of counsel claims, see Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Fritz, 105 NJ. 42, 519 A.2d 336 (1987), inexplicably defendant's trial counsel was never called to testify at the PCR hearing.
The federal parallel to New Jersey’s immunity statute, 18 U.S.C. § 6003, also requires "the request of the United States Attorney" as a necessary condition precedent to an "order requiring [a witness] to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination.” Accordingly, no federal case extends the power to grant judicial immunity beyond the limited circumstances when, as a last resort, it is necessary to cure prosecutorial misconduct at trial.