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

NOT FOR PUBLICATION WITHOUT THE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.
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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 postconviction relief with respect to the issue of representation by defense 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/Fritz2test. 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.
10 A-1592-16T4

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 
11 A-1592-16T4

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. NuñezValdéz, 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 
12 A-1592-16T4

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.