STATE OF NEW JERSEY VS. GEORGE KACPRZYKOWSKI (09-11-2830, ATLANTIC 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NOT FOR PUBLICATION WITHOUT THE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-1592-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GEORGE KACPRZYKOWSKI,
Defendant-Appellant.
________________________________
Argued August 29, 2018 – Decided October 3, 2018
Before Judges Alvarez and Gooden Brown.
On appeal from Superior Court of New Jersey, Law
Division, Atlantic County, Indictment No. 09-11-2830.
Justin T. Loughry, Designated Counsel, argued the
cause for appellant (Joseph E. Krakora, Public
Defender, attorney; Justin T. Loughry, on the briefs).
John J. Lafferty, IV, Assistant Prosecutor, argued the
cause for respondent (Damon G. Tyner, Atlantic
County Prosecutor, attorney; John J. Lafferty, IV, of
counsel and on the brief).
PER CURIAM
Defendant George Kacprzykowski appeals from the August 3, 2016 Law
Division order denying his petition for post-conviction relief (PCR) without an
evidentiary hearing. We affirm.
An Atlantic County grand jury indicted defendant for second-degree theft
by deception, N.J.S.A. 2C:20-4 (count one); two counts of third-degree theft by
failure to make required disposition, N.J.S.A. 2C:20-9 (counts two and three);
two counts of third-degree forgery, N.J.S.A. 2C:21-1(a)(2) (counts four and
five); and two counts of third-degree uttering a forged instrument, N.J.S.A.
2C:21-1(a)(3) (counts six and seven). The charges stemmed from defendant,
who was then a licensed real estate agent, misappropriating funds in excess of
$75,000 given to him by the victim in connection with various real estate
transactions.
On November 30, 2009, defendant entered a negotiated guilty plea to
count one, as amended to third-degree theft by deception. Defendant agreed to
pay restitution in the amount of $77,500 and to waive his right to appeal. In
exchange, in addition to amending count one and moving to dismiss the
remaining counts in the indictment at sentencing, the State agreed to recommend
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a non-custodial probationary sentence. 1 During the plea colloquy, defendant
admitted that between May 2004 and June 2005, he received deposits from the
victim, which he claimed were held in escrow, but were instead deposited into
defendant's personal account and spent. Defendant admitted that he never
returned the deposits to the victim when the real estate transactions never
materialized. Defendant also received money from the victim and deceived him
into believing that he (the victim) was investing as a partner in a company
specializing in purchasing large commercial properties and selling them at a
profit. On January 29, 2010, in accordance with the terms of the plea agreement,
defendant was sentenced to serve five years probation and ordered to pay
$77,500 in restitution.
On May 5, 2014, the trial court denied defendant's motion for a reduction
of the restitution amount, noting that the application "started out as a motion for
post-conviction relief." In an oral decision, the court determined that neither the
"checks" defendant claimed he paid to the victim prior to the plea agreement nor
the "business expenses" he claimed he incurred in connection with their
1
Because defendant had a prior indictable conviction, he was not entitled to the
presumption of non-incarceration applicable to most third-degree first-time
offenders. N.J.S.A. 2C:44-1(e).
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purported real estate company were "proper setoff[s]" to the restitution ordered
pursuant to the plea agreement. On July 1, 2014, the court again denied
defendant's motion for reconsideration of sentence for the same reasons, noting
that defendant "failed to submit any new information" that was not already
considered at the restitution hearing.
Defendant appealed the July 1, 2014 order, which was considered on the
excessive sentencing oral argument calendar pursuant to Rule 2:9-11. In an
order dated April 15, 2015, we affirmed the July 1, 2014 order "denying
defendant's motion for modification of the amount of restitution owed,
substantially for the reasons stated by the trial judge in his oral decision of May
5, 2014." We added, however, that because "there were no facts in the record
by way of certifications to support the claim made in the motion[,]" our
affirmance was "without prejudice to a renewal of an application for post -
conviction relief with respect to the issue of representation by def ense counsel
at the plea."
On February 16, 2016, defendant filed the present PCR application,
asserting that his attorney was ineffective for advising him to accept the plea
and accede to the restitution amount without adequately explaining his defense
to the charge. In his supporting certification, defendant averred that he and the
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victim "agreed to be partners to invest in commercial properties," and
"formalized [their] relationship in June 2005 with the creation of a limited
liability company." According to defendant, the LLC issued promissory notes
to the victim for all the monies the victim invested, both before the LLC was
formally created and after.
Defendant asserted that his plea counsel failed to examine all the relevant
documents, including the LLC's operating agreement and promissory notes
totaling $85,500, in order to demonstrate to the court and the prosecuting
attorney that any demand for restitution that included the amounts invested by
the victim pursuant to their LLC agreement was excessive and without legal
support. According to defendant, his attorney's performance was deficient
because he failed to draw a distinction between the $20,000 the victim entrusted
to him personally in his capacity as an employee of a real estate brokerage office
and which he admittedly failed to hold in escrow, and later investments by the
victim into the LLC for which defendant should not have been personally liable.
Following oral argument, in an August 3, 2016 written opinion, the PCR
court denied the application without an evidentiary hearing, finding defendant
failed to "present a prima facie case of ineffective assistance of trial counsel" to
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satisfy his burden under both prongs of the Strickland/Fritz 2 test. Procedurally,
the court determined that defendant's claim was barred under Rule 3:22-4(a),
barring claims not raised in prior proceedings, because he "litigated the issue of
restitution on two previous occasions, on May 5, [2014] . . . on motion to
reconsider, and on April 15, 2015, on a direct appeal." According to the court,
"[d]efendant is now attempting to litigate what essentially is the same exact
issue, to change the amount of restitution, through an ineffective assistance of
counsel claim."
Turning to the merits, the court concluded that defendant failed to
demonstrate that his "counsel was ineffective" or "that he was prejudiced by
counsel's performance." The court reviewed numerous documentary exhibits
submitted by defendant to support his claim and concluded that the documents
did not support a corporate veil defense. According to the court, "the existence
of [a] LLC does not make the [defendant] untouchable under criminal law, where
he committed fraud, misappropriation and theft on multiple occasions." The
court continued "[w]here the members of [a] LLC or corporation engage in
2
Strickland v. Washington, 466 U.S. 668 (1984); State v. Fritz, 105 N.J. 42(1987).
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deliberate unlawful conduct, the corporate veil can be pierced warranting
personal liability by the shareholders."
In support, the court relied on a series of cases in which New Jersey courts
pierced the corporate veil of a closely held corporation or a limited partnership
to impose liability on a partner individually who "used the limited partnership
to perpetrate a fraud, injustice, or otherwise circumvent the law." The court
concluded:
The case at hand falls within the exceptions
created by New Jersey courts to pierce [the] corporate
veil. The [defendant] engaged in deliberate unlawful
conduct. The [defendant] admitted that he
misappropriated the deposit money provided by the
victim. The sole purpose of creating the LLC seems to
be to defraud the victim out of money without raising
suspicion. However, the money provided by the victim
[was] never placed into a trust account or in an escrow
but was deposited into the [defendant's] personal bank
accounts. The [defendant's] conduct is exactly the kind
that was contemplated by the courts, when they created
an exception that permitted personal liability of
corporate members. . . . The [c]ourt finds that the
presented materials do not demonstrate that the money
extended by the victim was lost through efforts to
purchase the property as intended by the LLC
agreement. The [defendant] has previously admitted
that he placed the money in his personal bank account
and subsequently spent the money for personal use.
The documents presented do not negate that admission.
Consequently, even if the trial counsel did advise
the [defendant] that the LLC['s] status would protect
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him from personal liability[,] that information under the
circumstances would have been inaccurate and could
have potentially cause[d] more harm to the
[defendant's] case. . . .
Therefore, the [c]ourt finds that the [defendant]
was not prejudiced by the trial counsel's failure to
explore the defense of the "corporate shield." The
defense would have been rejected by the trial court if it
was presented at the time of his plea.
"[I]n evaluating the reasons for counsel's advice, as well as the credibility
of defendant's statement that he would not have pled guilty," the court also
considered "the strength of the State's case" and concluded "that the State had
sufficient evidence to convict the [defendant] on all of the counts charged." The
court pointed out that
[t]here were statements by the [defendant's] former real
estate employer regarding his failure to place the
deposit money in escrow. There are promissory notes
from the [defendant] to the victim for both personal and
LLC loans. The [defendant's] conduct had a sufficient
paper trail to convict him on the charged offenses. The
[c]ourt finds that the [defendant] made a well[-
]informed and weighted decision to take a plea to avoid
potential sentence exposure which included
incarceration.
The court also rejected defendant's argument that "his plea was
uninformed because his attorney failed to present him with potential defense
options." On the contrary, the court found that defendant's plea "was voluntary,
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well informed, and reasonable in . . . light of the charges, potential exposure,
and the strength of the State's case." The court explained:
Considering that the [defendant] took a plea where he
agreed to a term of probation and restitution as opposed
to [a] prison sentence, fine, and restitution, which he
was exposed to in case of a trial, the [c]ourt finds that
it would be highly unlikely that the [defendant] would
proceed to trial . . . as the chances of success on the
merits of the case were extremely low.
This appeal followed.
On appeal, defendant raises the following points for our consideration:
POINT I3
THE PCR COURT ERRED IN DENYING THE
DEFENDANT'S PETITION FOR PCR WITHOUT
AFFORDING HIM AN EVIDENTIARY HEARING
TO FULLY ADDRESS HIS CONTENTION THAT HE
FAILED TO RECEIVE ADEQUATE LEGAL
REPRESENTATION FROM TRIAL COUNSEL AS A
RESULT OF COUNSEL'S FAILURE TO APPRISE
HIM REGARDING THE EXISTENCE OF CERTAIN
DEFENSES TO THE RESTITUTION ISSUE.
POINT II
THE PCR COURT ERRED IN DENYING RELIEF
WITHOUT A HEARING BECAUSE THE
DEFENDANT PRODUCED SUFFICIENT
EVIDENCE THAT IF BELIEVED, WOULD AT
MINIMUM ESTABLISH A PRIMA FACIE CASE OF
IN[]EFFECTIVE ASSISTANCE OF COUNSEL, AND
THE COURT'S FINDINGS TO THE CONTRARY
PARTAKE OF FACTFINDING AND CREDIBILITY
3
We have consolidated Points I and II in defendant's brief for clarity.
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DETERMINATIONS THAT HAVE NO PLACE
WITHOUT A PLENARY HEARING.
POINT III
THE COURT ERRED IN INVOKING [RULE] 3:22-4
TO PROCEDURALLY BAR THIS PCR.
Merely raising a claim for PCR does not entitle the defendant to an
evidentiary hearing. State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.
1999). Rather, trial courts should grant evidentiary hearings and make a
determination on the merits only if the defendant has presented a prima facie
claim of ineffective assistance of counsel, material issues of disputed fact lie
outside the record, and resolution of those issues necessitates a hearing. R. 3:22-
10(b); State v. Porter, 216 N.J. 343, 355 (2013). We review a judge's decision
to deny a PCR petition without an evidentiary hearing for abuse of discretion.
See R. 3:22-10; State v. Preciose, 129 N.J. 451, 462 (1992).
To establish a prima facie claim of ineffective assistance of counsel,
a defendant must satisfy two prongs. First, he must
demonstrate that counsel made errors "so serious that
counsel was not functioning as the 'counsel' guaranteed
the defendant by the Sixth Amendment." An attorney's
representation is deficient when it "[falls] below an
objective standard of reasonableness."
Second, a defendant "must show that the deficient
performance prejudiced the defense." . . . The prejudice
standard is met if there is "a reasonable probability that,
but for counsel's unprofessional errors, the result of the
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proceeding would have been different." A "reasonable
probability" simply means a "probability sufficient to
undermine confidence in the outcome" of the
proceeding.
[State v. O'Neil, 219 N.J. 598, 611 (2014) (alteration in
original) (quoting Strickland, 466 U.S. at 687-88, 694
and Fritz, 105 N.J. at 52).]
To set aside a guilty plea based on ineffective assistance of counsel, "a
defendant must show that (i) counsel's assistance was not 'within the range of
competence demanded of attorneys in criminal cases;' and (ii) 'that there is a
reasonable probability that, but for counsel's errors, [the defendant] would not
have pled guilty and would have insisted on going to trial.'" State v. Nuñez-
Valdéz, 200 N.J. 129, 139 (2009) (alteration in original) (quoting State v.
DiFrisco, 137 N.J. 434, 457 (1994)). In other words, the defendant must show
that not pleading guilty would have been "rational under the circumstances."
State v. O'Donnell, 435 N.J. Super. 351, 371 (App. Div. 2014) (quoting Padilla
v. Kentucky, 559 U.S. 356, 372 (2010)).
Applying these principles, we conclude that defendant failed to establish
a prima facie case of ineffective assistance of counsel to warrant PCR or an
evidentiary hearing because the existing record was sufficient to resolve the
claims presented. We affirm substantially for the reasons the PCR court
expressed in its comprehensive written opinion. Like the PCR court, we are
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unpersuaded that defendant would have taken the risk of going to trial on all the
counts charged in the indictment in light of the strength of the State's case and
the more severe sentence he would have surely faced if he was convicted of a
second-degree offense. Because the PCR court addressed the merits of
defendant's claims, and correctly determined that defendant had not been denied
the effective assistance of counsel, we need not address defendant's argument
that the court erred by finding that his claims were barred by Rule 3:22-4.
Affirmed.
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