STATE OF NEW JERSEY VS. CASSEY GROSS(07-11-2589, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1716-14T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CASSEY GROSS,1

Defendant-Appellant.
__________________________

Submitted January 11, 2017 – Decided October 10, 2017

Before Judges Fuentes and Simonelli.

On appeal from Superior Court of New Jersey,
Law Division, Monmouth County, Indictment No.
07-11-2589.

Joseph E. Krakora, Public Defender, attorney
for appellant (Alan I. Smith, Designated
Counsel, on the brief).

Christopher J. Gramiccioni, Monmouth County
Prosecutor, attorney for respondent (Mary R.
Juliano, Assistant Prosecutor, of counsel and
on the brief; Anthony Puglisi, Legal
Assistant, on the brief).

1
Referenced in the record also as Cassey Nicole Gross and Cassey
N. Gross.
 The opinion of the court was delivered by

FUENTES, P.J.A.D.

Defendant Cassey Gross appeals from the order of the Criminal

Part denying her post-conviction relief (PCR) petition. We affirm.

On December 16, 2009, defendant negotiated an agreement with

the State through which she agreed to plead guilty to count one

of Monmouth County Indictment 07-11-2589, which charged her with

first degree conspiracy to commit murder, N.J.S.A. 2C:5-2 and

N.J.S.A. 2C:11-3a. In exchange, the State agreed to recommend

that the court sentence defendant to a term of fifteen years, with

an eighty-five percent period of parole ineligibility and five

years of parole supervision as mandated by the No Early Release

Act, N.J.S.A. 2C:43-7.2. The State also agreed to dismiss count

two of the Indictment, which charged defendant with first degree

murder, N.J.S.A. 2C:11-3a(1)/(2). On March 9, 2010, the court

sentenced defendant in accordance with the terms of the plea

agreement.

Defendant appealed through the summary process provided under

Rule 2:9-11. Defendant challenged both the length of the sentence

and the adequacy of the factual basis she gave at the plea hearing.

After hearing oral argument as provided by Rule 2:9-11, we

affirmed. State v. Cassey Gross, Docket A-5887-09 (App. Div. Oct.

20, 2011). Defendant thereafter filed a pro se PCR petition on

2 A-1716-14T1
October 24, 2012. Court-assigned PCR counsel filed an amended

petition and supporting brief arguing defendant received

ineffective assistance of trial counsel because the factual basis

she provided at the plea hearing was insufficient.

On December 20, 2013, the court-assigned PCR counsel withdrew

as attorney of record for defendant in this case. The court

assigned new counsel to represent defendant in the prosecution of

this PCR petition. In a certification attached to his request to

withdraw, the first PCR counsel represented to the court that he

had given replacement counsel all of the discovery in his

possession. Replacement counsel acknowledged receipt of this

discovery material, which his predecessor had originally obtained

from the Monmouth County Prosecutor's Office.

At a status conference held by the PCR judge on June 9, 2014,

defendant's new PCR counsel represented to the court that the

prosecutor had not provided him with all of the discovery in the

case. In a letter dated June 12, 2014, the Assistant Prosecutor

assigned to this case apprised the new PCR counsel that it was

"not the policy of this Office to duplicate an entire case file

in post-conviction relief proceedings[.]" To illustrate the

magnitude of the problem, the prosecutor noted that the file in

this case "consists of five boxes of documents." Finally, the

prosecutor argued that pursuant to State v. Marshall, 148 N.J. 89,

3 A-1716-14T1
268-71, cert. denied, 522 U.S. 850, 118 S. Ct. 140 (1997), a

defendant "has no automatic right to such discovery on PCR."

The prosecutor nevertheless advised PCR counsel that the

State would be willing to consider a written request to provide

"specific, relevant documents" that PCR counsel did not have in

his possession and was not otherwise able to obtain from the

attorney who represented defendant at the time she pled guilty.

In a letter dated June 16, 2014, PCR counsel rejected the

prosecutor's proposal and requested to schedule a date and time

"when I can come to your office and review the aforementioned

documents. I will then be able to identify the specific documents

of which I require copies." By letter dated June 18, 2014, the

prosecutor rejected PCR counsel's request and cited the Supreme

Court's admonition in Marshall concerning the right to discovery

in PCR proceedings.

[O]ur Court Rules concerning petitions for
PCR, see R. 3:22-1 to -12, do not contain any
provision authorizing discovery in PCR
proceedings. Moreover, the general discovery
obligations contained in the Rules Governing
Criminal Practice, see R. 3:13-2 to -4, do not
extend to post-conviction proceedings.
Defendant relies on Rule 3:13-3(g), which
refers to parties' "[c]ontinuing [d]uty to
[d]isclose" discoverable materials. However,
that obligation continues only "during trial."
Thus, our Court Rules do not explicitly
authorize the discovery requested by defendant
in this case.

4 A-1716-14T1
 [Marshall, supra, 148 N.J. at 268.]

On June 25, 2014, defendant moved before the PCR judge to

obtain an order to compel the State to provide discovery. In

addition to the written submissions of the parties, the judge

heard oral argument from counsel on August 29, 2014. Without

citing legal authority, PCR counsel argued the State had an

obligation to provide discovery in a PCR proceeding. PCR counsel

asked the court that "the State be made to copy the entire file,

every scrap of paper, and get it to my office within seven days,

and then we can set this down for a hearing." Citing the Court's

holding in Marshall, the PCR judge denied defendant's motion.

Defendant's PCR petition came before the court for oral

argument on October 17, 2014. PCR counsel argued defendant

received ineffective assistance when both her trial and appellate

counsel failed to challenge the sufficiency of the factual basis

she gave at the plea hearing. PCR counsel also claimed that

defendant's trial counsel should have investigated the case to

determine what role, if any, defendant played in the conspiracy

to kill the victim. The PCR judge denied the petition in an order

dated October 22, 2014. The judge explained the basis of his

ruling in a memorandum of opinion attached to the order.

Defendant now appeals raising the following arguments:

5 A-1716-14T1
 POINT ONE

THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED AND THE MATTER REMANDED FOR
AN EVIDENTIARY HEARING BECAUSE THE ISSUES
ADVANCED IN DEFENDANT'S PETITION, INCLUDING
TRIAL COUNSEL'S SILENCE DURING THE
UNTRUSTWORTHY PRO FORMA PLEA ALLOCUTION, AND
TRIAL COUNSEL'S FAILURE TO INTERVIEW CO-
DEFENDANT NIKKI MOORE, PRESENTED THE COURT
WITH PRIMA FACIE PROOF OF INEFFECTIVE
ASSISTANCE OF COUNSEL BY A PREPONDERANCE OF
THE EVIDENCE.

POINT TWO

DEFENDANT MADE A PRIMA FACIE SHOWING OF
INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL
BECAUSE APPELLATE COUNSEL'S DECISION TO
PRESENT DEFENDANT'S APPEAL BEFORE THE
EXCESSIVE SENTENCE PANEL INSTEAD OF PURSUING
A PLENARY APPEAL DEPRIVED DEFENDANT OF THE
OPPORTUNITY TO ARGUE THAT THE FACTUAL BASIS
FOR HER PLEA WAS INSUFFICIENT.

POINT THREE

THE ORDER DENYING POST-CONVICTION RELIEF
SHOULD BE REVERSED BECAUSE IT VIOLATED
DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT
TO THE UNITED STATES CONSTITUTION.

POINT FOUR

DEFENDANT'S POST-CONVICTION RELIEF MOTION TO
COMPEL DISCOVERY SHOULD HAVE BEEN GRANTED.

A PCR petition is our State's analogue to the federal writ

of habeas corpus. See State v. Afanador, 151 N.J. 41, 49 (1997).

We review a claim of ineffective assistance of counsel under the

two-prong test established by the United States Supreme Court in

6 A-1716-14T1
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed.

2d 674 (1984), and subsequently adopted by our Supreme Court in

State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must

demonstrate that defense counsel's performance was deficient.

Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed.

2d at 693. Second, she must show there exists "a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different." Id. at 694,

104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has

consistently upheld and applied these standards over the thirty

years since Fritz was decided. See State v. Pierre-Louis, 216

N.J. 577, 579 (2014).

In determining a claim of ineffective assistance of counsel

in a case in which a defendant pled guilty, "the issue is whether

it is ineffective assistance of counsel for counsel to provide

misleading, material information that results in an uninformed

plea, and whether that occurred here." State v. Nunez-Valdez, 200

N.J. 129, 139-40 (2009). Here, defendant challenges the

sufficiency of the factual basis she gave in support of her guilty

plea to first degree conspiracy to commit murder. She claims her

trial attorney should have challenged the factual basis.

Our standard of review concerning the sufficiency of a factual

basis to support a guilty plea is de novo because:

7 A-1716-14T1
 An appellate court is in the same position as
the trial court in assessing whether the
factual admissions during a plea colloquy
satisfy the essential elements of an offense.
When reviewing the adequacy of the factual
basis to a guilty plea, the trial court is not
making a determination based on witness
credibility or the feel of the case,
circumstances that typically call for
deference to the trial court.

[State v. Tate, 220 N.J. 393, 403 (2015).]

Defendant pled guilty to the crime of conspiracy to commit

murder. Under our criminal code,

a. A person is guilty of conspiracy with
another person or persons to commit a crime
if with the purpose of promoting or
facilitating its commission he:

(1) Agrees with such other person or persons
that they or one or more of them will engage
in conduct which constitutes such crime or an
attempt or solicitation to commit such crime;
or

(2) Agrees to aid such other person or persons
in the planning or commission of such crime
or of an attempt or solicitation to commit
such crime.

[N.J.S.A. 2C:5-2 (emphasis added).]

The record of the plea hearing shows defendant admitted to being

a member of "the Bloods," a notoriously violent street gang.

Defendant was present and participated in the meeting where the

conspiracy to murder the victim was formed. The conspirators,

including defendant, designated who would actually carry out the

8 A-1716-14T1
plan to kill the victim. The plan was executed and resulted in

the victim's death. Defendant's answers under oath in response

to her attorney's questions at the plea hearing satisfied the

elements of conspiracy under N.J.S.A. 2C:5-2a. We discern no

legal grounds to question the adequacy of defendant's factual

basis.

Even if we were to conclude trial counsel's failure to

challenge the adequacy of the factual basis satisfies the first

prong under Strickland, supra, 466 U.S. at 687, 104 S. Ct. at

2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58, there is

no evidence from which to find this would have caused defendant

to reject the plea agreement. Independent of this analysis, we

also agree with the State's argument that defendant is procedurally

barred from raising this issue in a PCR petition pursuant to Rule

3:22-5. The record of the oral argument conducted as part of

defendant's direct appeal under Rule 2:9-11 clearly shows

appellate counsel raised the adequacy of defendant's factual basis

as an issue. We rejected this argument and affirmed the conviction

and sentence.

Defendant's remaining arguments lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(2). We

affirm substantially for the reasons expressed by the PCR judge

in his memorandum of opinion dated October 22, 2014.

9 A-1716-14T1
 As a final note, we are compelled to offer the following

comment with respect to PCR counsel's demand that the State provide

discovery in this case. As a starting point, PCR counsel's legal

position completely ignored the consistent, unequivocal standards

established by our Supreme Court twenty years ago in Marshall.

These standards were recently reaffirmed by Chief Justice Rabner

on behalf of a unanimous Court:

The scope of permissible discovery at that
stage is limited. "[O]nly in the unusual case
will a PCR court invoke its inherent right to
compel discovery." State v. Marshall, 148
N.J. 89, 270, cert. denied, 522 U.S. 850, 118
S. Ct. 140, 139 L. Ed. 2d 88 (1997).

As this Court has explained, "[t]he filing of
a petition for PCR is not a license to obtain
unlimited information from the State, but a
means through which a defendant may
demonstrate to a reviewing court that he was
convicted or sentenced in violation of his
rights." Ibid. (citing R. 3:22-2). As a
result, "any PCR discovery order should be
appropriately narrow and limited." Ibid.
(citations omitted). This Court has also
directed that unless there are exceptional
circumstances, "a defendant seeking to inspect
State files should identify the specific
documents sought for production." Id. at 271,
690 A.2d 1. A PCR judge may view those
documents in camera before deciding whether
to order their disclosure. Ibid. The PCR
judge's discovery order is reviewed on appeal
for abuse of discretion. See id. at 272.

To obtain PCR relief, defendants must carry
"the burden of proving that barring the
petition would lead to injustice." State v.
Mitchell, 126 N.J. 565, 587 (1992) (citation

10 A-1716-14T1
 omitted). To make that assessment, "courts
will look to whether the judicial system has
provided the defendant with fair proceedings
leading to a just outcome." Ibid. Although a
defendant need not prove that "the issue of
concern cost him the case, . . . 'there should
at least be some showing that . . . [the
alleged violation] played a role in the
determination of guilt.'" Ibid.

[State v. Herrerra, 211 N.J. 308, 328-29
(2012).]

Although legal principles are subject to continuous revision

by the nature of our adversary system, PCR counsel should have

adopted a less strident, more deferential position to the rule of

law. The prosecutor's response, by contrast, was in keeping with

the highest standard of congeniality and professionalism. This

is particularly noteworthy considering that "[t]he primary duty

of a prosecutor is not to obtain convictions, but to see that

justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987).

Affirmed.

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