STATE OF NEW JERSEY v. CHRISTOPHER M. KRAFSKY

NOT FOR PUBLICATION WITHOUT THE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-2961-15T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

CHRISTOPHER M. KRAFSKY,
a/k/a C-MONEY,

     Defendant-Appellant.
__________________________

              Submitted January 31, 2018 – Decided March 20, 2018

              Before Judges Fuentes and Koblitz.

              On appeal from Superior Court of New Jersey,
              Law Division, Somerset County, Indictment
              Nos., 11-07-0477, 12-03-0185 and 14-11-0769.

              Joseph E. Krakora, Public Defender, attorney
              for appellant (John Douard, Assistant Deputy
              Public Defender, of counsel and on the brief).

              Michael   H.   Robertson,   Somerset   County
              Prosecutor, attorney for respondent (Paul H.
              Heinzel, Assistant Prosecutor, of counsel and
              on the brief).


PER CURIAM

        A jury convicted defendant Christopher M. Krafsky of first-

degree drug-induced death, a strict liability crime under 
N.J.S.A.
2C:35-9(a).     He appeals from the February 5, 2016 conviction and

the sentence of twelve years with an eighty-five percent period

of parole ineligibility imposed on Indictment No. 14-11-0769,

which was imposed concurrent to an aggregate three-year term for

a violation of probation based on the February 2016 conviction.

The probation had been imposed on two indictments charging third-

degree drug offenses, Indictment Nos. 11-07-0477 and 12-03-0185.

     We recite only those facts presented at trial that relate to

the issues raised by defendant on appeal.    The victim died from a

heroin overdose during the night of December 23, 2013, in the

basement of his mother's home.    The parents had been divorced for

many years.     She discovered his body when she awoke at 5:00 a.m.

Police Officer Robert Meszaros found the victim had communicated

by text with an individual named "MAT" the night before. Defendant

was the service subscriber for MAT's number.

     Meszaros testified he arranged a meeting with defendant in a

shopping mall.    Defendant admitted to the officer that on December

23 he had sold the victim $50 worth of heroin, which defendant had

obtained from "Toot."     Meszaros then took defendant to the patrol

car to record a statement, at which time defendant invoked his

right to remain silent.    At trial, defendant testified that he and

the victim together went to see Toot, who sold each of them heroin

on that date.


                                   2                        A-2961-15T1
     The victim's father testified that 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, after

which the father took the victim back to his mother's house.     The

father was too far away to identify the other man.

     On this appeal, defendant argues:

          POINT I: THE PROSECUTOR COMMITTED REVERSIBLE
          ERROR DURING HER SUMMATION BY DRAWING JURORS'
          ATTENTION TO MR. KRAFSKY'S FAILURE TO TELL
          MESZAROS THAT HE AND JOHNSON JOINTLY OWNED THE
          HEROIN. THE PROSECUTOR THEREBY VIOLATED MR.
          KRAFKSY'S FIFTH AMENDMENT RIGHT TO SILENCE,
          AND IGNORED LONGSTANDING NEW JERSEY CASE LAW
          PROHIBITING THE STATE FROM COMMENTING ON
          DEFENDANT'S SILENCE. U.S CONST. AMENDS. V,
          XIV.

          POINT II:     IN SUMMATION, THE PROSECUTOR
          COMMITTED MULTIPLE ACTS OF MISCONDUCT, MOST
          NOTABLY WHEN SHE RIDICULED DEFENSE COUNSEL AND
          MR. KRAFSKY'S DEFENSE.

          POINT III:    THE JUDGE'S IMPOSITION OF A
          TWELVE-YEAR PRISON TERM, WITH AN 85% PERIOD
          OF   PAROLE  INELIGIBILITY  WAS  MANIFESTLY
          EXCESSIVE.

     In Point I and II defendant argues that the prosecutor's

summation impermissibly commented on defendant's right to remain

silent and ridiculed the defense.     Our Supreme Court recently

stated: "This Court has long recognized that '[p]rosecutors are

afforded considerable leeway in closing arguments as long as their

comments are reasonably related to the scope of the evidence.'"



                                3                          A-2961-15T1
State v. Cole, 
229 N.J. 430, 457 (2017) (alteration in original)

(quoting State v. Frost, 
158 N.J. 76, 82 (1999)).

     The prosecutor commented on defendant's admission to Meszaros

that he had sold the victim the fatal dose of heroin, which

conflicted with defendant's trial testimony that Toots had sold

the victim the heroin.   Defendant frames the prosecutor's argument

as a comment on what defendant failed to tell Meszaros, analogizing

the situation to State v Muhammad, 
182 N.J. 551, 569-74 (2005).

In Muhammad, the defendant told the police at the scene that he

shot the victim, but nothing else.   At trial, the defendant raised

self-defense.   Our Supreme Court held that the fact "the defendant

gave only a partial account to the police at or near the time of

his arrest did not open the door to prosecutorial questioning

about what the defendant did not tell to the police."   Id. at 571.

Here defendant did not omit a defense, he changed his story.     Our

Supreme Court recently determined: "Because we find that defendant

waived his right to remain silent, cross-examination regarding

facts to which he testified at trial, but omitted in his statement

to police, was proper."     State v. Kucinski, 
227 N.J. 603, 623

(2017).   Defendant gave a voluntary incriminating statement to the

police that he contradicted at trial.     The State is entitled to

comment on that discrepancy.




                                 4                         A-2961-15T1
     Defendant also objects that the prosecutor made improper

comments    in   summation    belittling   his   defense.    Indeed,   the

prosecutor improperly urged the jury not to be              "scared into

indecision by what you just heard from [defense counsel]," and

told the jurors not to "cower away from" doing their job several

times during her summation.          She also pointed to the victim's

parents and grandparents who were seated in the courtroom and

reminded the jury that they lost "a son" and "a grandson."          These

comments attempted to play on the jury's sympathies rather than

comment on the evidence.        See State v. Blakney, 
189 N.J. 88, 96

(2006) ("the assistant prosecutor's duty is to prove the State's

case based on the evidence and not to play on the passions of the

jury or trigger emotional flashpoints, deflecting attention from

the hard facts on which the State's case must rise or fall.").

     Our    Supreme   Court    has   discussed   improper   prosecutorial

comments:

            Not every improper prosecutorial statement
            will warrant a new trial. Rather, a reviewing
            court may reverse only if the prosecutor's
            comments were "so egregious that [they]
            deprived the defendant of a fair trial." The
            court's inquiry should consider "(1) whether
            defense counsel made timely and proper
            objections to the improper remarks; (2)
            whether the remarks were withdrawn promptly;
            and (3) whether the court ordered the remarks
            stricken from the record and instructed the
            jury to disregard them."

            [State v. Daniels, 
182 N.J. 80, 96-97 (2004)

                                      5                          A-2961-15T1
           (alteration in original) (first quoting Frost,
           
158 N.J. at 83, then quoting State v. Smith,
           
167 N.J. 158, 182 (2001).]

      Defense     counsel   brought    these    comments    to     the    court's

attention after the summation, but stated: "And so I'm clear, I'm

not asking for any remedy.           I'm not even asking for a mistrial

because I think it would - - we don't want a mistrial."                  Defendant

is not permitted to point out a problem, petition the court not

to remedy the situation by way of a curative instruction, nor

declare a mistrial, and then prevail on appeal arguing that the

trial judge should have declared a mistrial over the objection of

defense counsel. See State v. A.R. 
213 N.J. 542, 561 (2013) (where

the Court discusses invited error in a criminal context).

      Finally, in Point III, defendant argues that his sentence was

manifestly   excessive.       The    first-degree    conviction      carried       a

possible sentence of ten to twenty years.            Defendant was thirty-

three years old and had five prior indictable convictions. Defense

counsel argued for a ten-year custodial sentence. The State sought

a   twenty-year    term.     On     appeal,    defendant   states        that   his

overwhelming remorse should have led to a lesser sentence.

      The court found aggravating factors (3), risk of re-offense,

(6), extent of prior convictions, and (9), need for deterrence.


N.J.S.A.   2C:44-1(a)(3),     (6)     and   (9).    The    court    also     found

mitigating factors (2), defendant did not anticipate his conduct


                                       6                                  A-2961-15T1
would cause great harm, and (12), he cooperated with the police.


N.J.S.A. 2C:44-1(b)(2) and (12).    The judge found the aggravating

factors outweighed the mitigating factors, but nonetheless imposed

a sentence on the low end of the permissible ten to twenty-year

term.

     Having considered the record, we conclude the findings of

fact regarding aggravating and mitigating factors were based on

competent and credible evidence in the record, the court correctly

applied the sentencing guidelines enunciated in the Code, and the

court did not abuse its discretion in imposing the sentence.     See

State v. Cassady, 
198 N.J. 165, 180-81 (2009).   The sentence does

not "shock the judicial conscience."    State v. Roth, 
95 N.J. 334,

364-65 (1984).

     Affirmed.




                                7                          A-2961-15T1