STATE OF NEW JERSEY VS. GREGORY KELLY (13-03-0186, 13-06-0604 AND 13-11-1039, PASSAIC COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE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-3334-16T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GREGORY KELLY,
Defendant-Appellant.
Submitted February 28, 2018 – Decided June 5, 2018
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment Nos.
13-03-0186, 13-06-0604, and 13-11-1039.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark Zavotsky, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh,
Chief Assistant Prosecutor, of counsel and on
the brief).
PER CURIAM
Defendant Gregory Kelly appeals from a March 7, 2017 Law
Division order denying his petition for post-conviction relief
(PCR). We affirm.
Defendant, who was extended-term-eligible under New Jersey's
Three Strikes Law, N.J.S.A. 2C:43-7.1, was charged in three
indictments. The first, No. 13-03-0186, related to events which
occurred on October 24, 2012, in Clifton, and charged defendant
with first-degree robbery, N.J.S.A. 2C:15-1(a)(1) and/or N.J.S.A.
2C:15-1(a)(2); third-degree possession of a weapon for unlawful
purpose, namely, a six-inch steak knife, N.J.S.A. 2C:39-4(d);
fourth-degree unlawful possession of a weapon, namely, a six-inch
steak knife, N.J.S.A. 2C:39-5(d); fourth-degree resisting arrest,
N.J.S.A. 2C:29-2(a)(2); and fourth-degree certain persons not to
have weapons, namely, a six-inch steak knife, N.J.S.A. 2C:39-7(a).
The second indictment, No. 13-06-0604, charged that while in
Paterson on October 12, 2012, defendant committed a second-degree
robbery, N.J.S.A. 2C:15-1(a)(1), and third-degree theft, N.J.S.A.
2C:20-3. Finally, defendant faced Indictment No. 13-11-1039,
charging first-degree robbery upon M.A., in Paterson, while armed
with a knife, and third-degree possession of a weapon for an
unlawful purpose.
During defendant's plea colloquy as to the October 24 charge,
he said the following:
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Q And you saw a woman getting into her
car.
A Right.
Q And the woman that you saw getting
into her car, she had an item that you wanted.
A Yeah, a Louis Vuitton purse.
. . . .
Q And you approached the woman.
A Yes, I followed her around . . . the
shopping area.
. . . .
Q And when you approached her, you had
an item in your hand.
A I had a -- like a 6 inch steak knife.
Q Okay and you understand that that 6
inch steak knife is a deadly weapon?
A Yes Sir.
Q And you approached her showing her
that steak knife.
A Yes.
Q And it appeared to you that she saw
that you had that steak knife in your hand.
A Yes.
Q And you grabbed her purse.
A And I grabbed the purse and took off with
it.
Q Okay and the police arrested you?
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A About 10 minutes later (indiscernible).
Q Okay. And they caught you with the
knife?
A Yes they did.
Q And they caught you with her purse?
A Yes.
. . . .
Q She was . . . also with a small child
that day, right?
A I seen her in the . . . supermarket with
the child.
Q She was putting her child in the car
-- she was at her car when you approached her
with the knife, right?
A Yes.
Q And that's when you took the purse?
A Well she -- the child was just about in
the car seat and she turned around and I had
the knife in my hand and she looked at me, I
looked at her, I never said anything to her,
she never said anything to me, but she seen
the knife, and basically she just backed up
and let me get the purse.
With regard to the October 5, 2012 robbery, defendant
responded under oath to questioning:
Q . . . On October 5th of 2012, you
committed another robbery.
A I was in Paterson, I believe -- like
Ellison (phonetic) Street in the parking lot
area.
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Q Okay and you saw a woman in the
parking lot area.
A Right.
. . . .
Q And she had something that you
wanted also, right?
A Yeah, she had . . . a Gap bag and I think
. . . she had a Gap bag, I think she had
another . . . designer bag, I'm not sure --
. . . .
Q And you had -- and you approached
this woman from behind.
A Right.
Q And you had something in your hand
when you approached her from behind, right?
A Yeah, I had a similar . . . steak knife.
Q Was it the same knife as you used
in a later robbery or a different knife?
A It was . . . a similar one
(indiscernible).
Q Similar knife but different . . .
actual knife.
A Right.
Q And you approached her.
A I approached her from behind. I watched
for a few minutes and then -- and I grabbed
her -- when I . . . grabbed at . . . her purse,
struggled with her a little bit and she like,
fell back, I fell back and she fell down some
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stairs and she wouldn't let the purse go, so
I end up holding her down.
. . . .
Q And you showed her the knife on
purpose as a means to steal her property,
right?
A Yes Sir.
. . . .
Q . . . You put the knife to her neck
and demanded her purse, right or money?
A It was . . . by her chest area --
Q But --
A -- not exactly her . . . neck, but her
chest area.
Q Okay and she fought back?
A Right.
Q And you punched her in the face?
A Yeah.
Q And you . . . took her things?
A Yes.
Defendant acknowledged robbing a woman who was older than he,
who "had a couple of designer purses" during the October 12
Paterson robbery. He said:
A I . . . grabbed her purse and I ended up
pulling her down a flight of stairs [be]cause
she wouldn't let . . . go.
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Q And you admit that by pulling her
down the flight of stairs, you used physical
force against her to try to steal her purse.
A Yes.
Q And in fact, you injured her.
A Yeah, I believe she did get hurt.
. . . .
Q Before you robbed her, she didn't
have any injuries to her face.
A Or . . . anywhere else (indiscernible).
Q And you're satisfied after seeing
the pictures that after you robbed her, that
she was actually injured as a result of what
you did, right?
A Right.
During his colloquy with the judge, defendant acknowledged
that his plea was entered knowingly, intelligently, and
voluntarily, and that he was satisfied with the services of his
attorney. He also acknowledged that his multiple prior convictions
for violent offenses exposed him to the mandatory extended term
for either of the first-degree robberies.
Defendant was represented by two attorneys. He rejected the
State's initial plea offer of twenty years subject to the No Early
Release Act (NERA), N.J.S.A. 2C:43-7.2, when represented by a
first attorney. When represented by a second attorney, the State
offered him a thirty-year plea deal, and he countered at twenty-
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eight. Only by reaching out to the assistant prosecutor's
supervisor was defendant's attorney able to obtain the twenty-
eight-year offer.
In sentencing defendant, the court found aggravating factors
two, three, six, nine, and twelve. N.J.S.A. 2C:44-1(a)(2), (3),
(6), (9), and (12). The judge did not find any mitigating factors.
See N.J.S.A. 2C:44-1(b). The judge commented that in light of the
aggravating factors he found pertinent to the individual crimes
and defendant's violent criminal history, had he been convicted
at trial, there was no question he would have received a life
sentence.
Defendant entered his guilty plea on April 21, 2015.
Approximately two months later, he filed a motion to retract his
guilty pleas on the first-degree robberies. In the application,
he denied having possessed a knife during the Clifton robbery.
The reason he denied possession was because the arresting officer's
police report stated that the knife was recovered from his pants
pocket shortly after the event, while another officer testified
before the grand jury that the knife had been in defendant's coat
pocket. Defendant denied being involved in the Ellison Street
robbery at all, and alleged that the prosecutor pressured him into
pleading guilty by threatening him with a life sentence. He also
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asserted that his first attorney had failed to obtain an
exculpatory videotape of the incident.
During arguments on the motion, defendant's second attorney
said defendant did not wish to argue that he pressured him into
pleading guilty or that he was ineffective, only that he was
dissatisfied with his prior attorney. Additionally, the second
attorney noted that there were no video cameras at the time and
location the robbery occurred. Even if there had been, they would
not have recorded the event because of their location.
After defendant's motion was denied, the judge sentenced him
to the agreed-upon term of twenty-eight years in the aggregate on
each first-degree robbery subject to NERA, concurrent, as well as
to a concurrent term of ten years subject to NERA for the second-
degree offense. Defendant did not file a direct appeal.
In his unsuccessful PCR application and now on appeal,
defendant alleges that counsel was ineffective in that he coerced
him to accept a plea by advising him that if he did not take the
offer, he faced a life sentence. The PCR judge reviewed the
Slater1 factors, and concluded that defendant was not making a
colorable claim of innocence, and thus could not withdraw. The
judge further found that defendant's attorney's frankness with
1
State v. Slater, 198 N.J. 145, 157 (2009).
9 A-3334-16T1
regard to the sentencing consequences if defendant was convicted
at trial, and the strength of the State's case, was not ineffective
representation. Instead, it was a realistic presentation of
defendant's circumstances; it would have been "ineffective for him
to lie." The judge observed that this plea offer, in the face of
overwhelming proofs, gave defendant some hope of release, whereas
a life sentence obviously would not.
The judge found that the second attorney not only visited
defendant, but thoroughly reviewed the discovery and went to the
scene. By going to the scene, counsel learned there were no videos
available. This defendant had an extensive criminal history and
faced three separate charges of violent crimes. The State's proofs
were overwhelming, and although defendant was dissatisfied, he was
ultimately well-served by the plea agreement negotiated on his
behalf.
On this appeal, defendant argues:
POINT I
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE
OF COUNSEL ENTITLING HIM TO POST CONVICTION
RELIEF
(A) Counsel was ineffective for having
coerced defendant to accept a plea by
corroborating the prosecutor's
communication that if defendant did not
accept a plea he would spend the rest of
his life in prison
(B) The PCR court erred in its denial of
defendant's claim he received
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ineffective assistance on his motion to
vacate his plea
POINT II
DEFENDANT IS [ENTITLED] TO AN EVIDENTIARY
HEARING ON HIS CLAIM THAT INITIAL TRIAL
COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE
TO DISMISS THE TWO FIRST DEGREE CHARGES OF
ROBBERY CONTAINED IN THE INDICTMENTS
We find no merit to these arguments. R. 2:11-3(e)(2).
In order to obtain relief based on ineffective assistance of
counsel grounds, a defendant is obliged to demonstrate not only
that counsel's performance was deficient, but the manner in which
the alleged deficiency prejudiced his right to a fair trial,
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Fritz,
105 N.J. 42, 58 (1987).
When an ineffective assistance of counsel claim is made by a
defendant who entered a guilty plea, he or she must show that not
only was the representation not "within the range of competence
demanded of attorneys in criminal cases," but also that there was
"a reasonable probability that, but for counsel's errors,
[defendant] would not have pled guilty and would have insisted on
going to trial." State v. DiFrisco, 137 N.J. 434, 457 (1994)
(citations omitted).
The alleged deficiency in this case was defense counsel's
honest assessment of defendant's position, conveyed to his client
and conveyed by the prosecutor on the record. If convicted of
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even one first-degree robbery, defendant would be sentenced to a
mandatory term of life in prison. This was not a threat––it was
an uncomfortable reality. Trial counsel's competence is
demonstrated by the fact he conveyed that reality to his client.
On the merits, defendant could not meet the Slater test in
support of his motion to withdraw the guilty pleas. Defendant
fully and convincingly established a factual basis for the pleas,
and volunteered details that made any subsequent claim of innocence
incredible.
Defendant suggests his first attorney was incompetent because
he did not seek dismissal of the first-degree robbery indictment
based on the discrepancy in the location of the knife when
defendant was arrested. He also contends his first attorney was
ineffective because of his failure to obtain a video that did not
exist. These points border on the frivolous and do not warrant
further discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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