                        NOT FOR PUBLICATION WITHOUT THE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:

                                       2                                A-3334-16T1
       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?

                          3                          A-3334-16T1
           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.

                                     4                             A-3334-16T1
     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


                        5                            A-3334-16T1
         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.


                                 6                        A-3334-16T1
                   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-

                                          7                            A-3334-16T1
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



                                         8                                    A-3334-16T1
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

                                 10                         A-3334-16T1
                  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

                                  11                             A-3334-16T1
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.




                                        12                             A-3334-16T1
