                                NOT FOR PUBLICATION WITHOUT THE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).




                                          2                               A-3913-19
      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.




                                        3                                   A-3913-19
        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.

                                         4                                   A-3913-19
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).]

                                        5                                 A-3913-19
           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.




                                     6                                 A-3913-19
            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.

                                        7                                 A-3913-19
Affirmed.




            8   A-3913-19

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