STATE OF NEW JERSEY VS. CHRISTOPHER M. KRAFSKY (14-11-0769, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-3913-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER M. KRAFSKY,
a/k/a CHRISTOPH KRAFSKY,
and C-MONEY,
Defendant-Appellant.
___________________________
Submitted May 5, 2021 – Decided May 25, 2021
Before Judges Fuentes and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Indictment No. 14-11-
0769.
Joseph E. Krakora, Public Defender, attorney for
appellant (Brian D. Driscoll, Designated Counsel, on
the brief).
Michael H. Robertson, Somerset County Prosecutor,
attorney for respondent (Lauren E. Bland, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Christopher M. Krafsky appeals from a December 20, 2019
order of the Criminal Part denying his post-conviction relief (PCR) petition
without conducting an evidentiary hearing. We affirm substantially for the
reasons expressed by Judge Anthony F. Picheca, Jr., in his comprehensive
written decision that accompanied the order under review.
I.
On November 20, 2014, a Somerset County grand jury returned an
indictment against defendant charging him with strict liability for drug induced
death, N.J.S.A. 2C:35-5(a) and 2C:35-9(a) (count one); and third-degree
distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5(a)(1)
and 2C:35-5(b)(3) (count two). A jury found defendant guilty on count one and
count two was dismissed. On January 11, 2016, defendant pled guilty to
violations of probation for third-degree distribution of CDS. On February 5,
2016, defendant was sentenced to twelve years' imprisonment subject to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirmed defendant's
conviction and sentence on direct appeal, State v. Christopher Krafsky, No. A-
2961-51 (App. Div. Mar. 20, 2018), and the Supreme Court denied his petition
for certification, 235 N.J. 353 (2018).
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These are the facts that led the jury to find, beyond a reasonable doubt,
that defendant was strictly liable for the drug induced death of Richard Johnson.
Johnson died from a heroin overdose in the basement of his mother's home the
night of December 23, 2013. His parents were divorced and living separately
and apart. She discovered his body at 5:00 a.m. when she awoke and notified
the police. The investigating officer, Robert Meszaros, found Johnson had
communicated by text with an individual named "MAT" the night before, and
defendant was the service subscriber for MAT's number. Sprint phone records
identified defendant having a P.O. box address in Irvine, California. Because
the cellular phone referenced a 908 area code, the officer was able to track
defendant down through the New Jersey Motor Vehicle Agency and locate him
in Bridgewater.
Meszaros testified that he arranged a meeting with defendant in a
shopping mall. Defendant admitted to the officer that on December 23, 2013,
he had sold Johnson $50 worth of heroin, which defendant obtained from "Toot."
After Meszaros tried to take defendant to the patrol car to record a statement, he
invoked his right to remain silent. At trial, defendant testified that both he and
Johnson together went to see Toot, who sold heroin to each of them on that date.
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Johnson's father testified that on the night of December 23, at about 11:00
p.m., he took his son to see another man and a quick exchange occurred between
the two men on the street. Thereafter, the father took his son back to his mother's
house. The father was too far away to identify the other man.
On December 10, 2018, defendant filed this pro se PCR petition alleging
ineffective assistance of his defense counsel. The court assigned counsel to
represent defendant in the prosecution of his PCR petition. PCR counsel
submitted an amended PCR petition in which he claimed trial counsel was
ineffective "for not conducting any investigation whatsoever pre-trial through
trial and sentencing," 1 failing to procure Johnson's phone records, and failing to
move for a mistrial based on alleged prosecutorial misconduct. Defendant
sought to vacate his conviction and sentence. Alternatively, defendant requested
an evidentiary hearing on the issues raised.
On October 22, 2019, oral argument was heard on defendant's PCR
petition. Judge Picheca rejected defendant's claim of ineffective assistance of
trial counsel. In his December 20, 2019 written statement of reasons pursuant
to Rule 1:6-2(f), the PCR judge held that defendant did not present a prima facie
1
PCR counsel's brief is not included in the appendix.
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case of ineffective assistance of counsel for failing to obtain additional phone
records. Judge Picheca elaborated:
Here, [defendant] was required to assert the facts
that an investigation would have revealed, supported by
affidavits or certifications based upon the personal
knowledge of the affiant or the person making the
certification. [State v.] Cummings, 321 N.J. Super.
154[,] 170 [(App. Div. 1999)]. First, [defendant] failed
to support his claims by either an affidavit or
certification as required under Cummings. Ibid.[Defendant] asserts the victim could have made
multiple purchases that evening to satisfy his drug
addiction; however, there is no proof of this and there
is no guarantee this would be found within his text
message records. [Defendant] failed to present any
evidence of what those possible text messages would
have shown; in essence, he presents only bald
assertions that additional investigations would have
revealed exculpatory information. [Ibid.]
Additionally, this [c]ourt believes trial counsel's
failure to investigate for more text messages was used
against the State and is considered to be trial strategy.
[Defendant] argues the messages without further
context were devastating, and that counsel should have
known better to retrieve those messages. Counsel,
however, referred to the lack of messages in the
summations and even said, "[w]e don't have any other
texts." . . . Because this was used against the State, this
[c]ourt concludes it was a strategic decision.
Under the second prong of Strickland, there is not
a reasonable probability the results of the proceedings
would have been different had other text messages, if
any at all, been recovered during investigation.
[Strickland v. Washington, 466 U.S. 688 (1984).]
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Nothing is offered to suggest they may have directly
negated [defendant's] guilt. In fact, it is possible
additional text messages could have been even more
inculpatory.
Judge Picheca also addressed and rejected the balance of defendant's
arguments attacking defense counsel's performance at trial and declining to
object or seek a mistrial after closing arguments. Defendant's request for an
evidentiary hearing was denied.
Against this record, defendant raises the following arguments in this
appeal:
POINT I
THE COURT ERRED IN FINDING TRIAL
COUNSEL NOT INEFFECTIVE IN HIS FAILURE
TO INVESTIGATE THE PHONE RECORDS.
POINT II
THE COURT ERRED IN FINDING THAT THE
FAILURE TO OBJECT TO THE PROSECUTOR'S
SUMMATION DID NOT PREJUDICE DEFENDANT.
POINT III
THE COURT ERRED IN FINDING THAT TRIAL
COUNSEL WAS NOT INEFFECTIVE FOR FAILING
TO MOVE TO SUPPRESS THE TESTIMONY AND
REPORT ON THE QUESTIONING OF
DEFENDANT.
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POINT IV
THE COURT ERRED IN FINDING THAT THE
CLAIMS OF INEFFECTIVE ASSISTANCE DID NOT
PREJUDICE DEFENDANT AND WOULD NOT
HAVE CHANGED THE RESULT OF THE TRIAL.
II.
As our Supreme Court has reaffirmed, "[t]o prevail on a claim of
ineffective assistance of counsel, a defendant must . . . show both: (1) that
counsel's performance was deficient, and (2) that the deficient performance
prejudiced the outcome." State v. Pierre-Louis, 216 N.J. 577, 579 (2014) (citing
Strickland, 466 U.S. at 687; State v. Fritz, 105 N.J. 42, 58 (1987)).
We have considered defendant's arguments raised in this appeal in view
of the record, the applicable legal principles, and our deferential standards of
review, and conclude his contentions lack sufficient merit to warrant further
discussion in a written opinion. R. 2:11-3(e)(2). We discern no legal basis to
disturb Judge Picheca's factual findings in his written statement of reasons
pursuant to Rule 1:6-2(f) attached to his December 20, 2019 order. Based on
these findings, we reject defendant's arguments and affirm substantially for the
reasons expressed by Judge Picheca. Under these circumstances, defendant was
not entitled to an evidentiary hearing. State v. Preciose, 129 N.J. 451, 461
(1992); see also R. 3:22-10.
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Affirmed.
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