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

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.

NOT FOR PUBLICATION WITHOUT THE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.

October 10, 2017
2 A-1716-14T1

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 
3 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, 
4 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.
5 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:
6 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 CODEFENDANT 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 
7 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:
8 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 
9 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.
10 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 
11 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.