STATE OF NEW JERSEY v. MICHAEL FUSCALDO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1407-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL FUSCALDO,

Defendant-Appellant.

 
____________________________

Submitted March 15, 2010 - Decided

Before Judges Rodr guez and Chambers.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 93-06-1327.

Michael Fuscaldo, appellant pro se.

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Steven J. Harbace, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Michael Fuscaldo appeals from the denial of his second petition for post-conviction relief. He contends that he is entitled to post-conviction relief due to the ineffective assistance of his trial, appellate, and post-conviction relief counsel. This contention arises from the alleged failure of defense counsel to obtain rebuttal expert testimony to refute the opinion of the State's ballistics expert regarding the bullets secured from the victim's body. After a review of the record, the arguments presented by the briefs, and the relevant law, we affirm.

I

In 1996, defendant was convicted by a jury of knowing and purposeful murder, N.J.S.A. 2C:11-3(a), and related weapons offenses. The trial court sentenced him to life imprisonment with a thirty-year period of parole ineligibility on the murder count, and, after merger, concurrent sentences for lesser periods of time on the remaining weapons counts. The conviction and sentence were affirmed on direct appeal. State v. Fuscaldo, No. A-5482-95 (App. Div. Aug. 27, 1997) (slip op. at 2), certif. denied, 152 N.J. 189 (1997). Defendant's petition for a writ of habeas corpus was denied by the United States District Court of New Jersey. Fuscaldo v. Morton, No. 98-5093 (D. N.J. July 15, 1999). Defendant's first petition for post-conviction relief, which was timely filed, was denied by the trial court, and that decision was affirmed on appeal. State v. Fuscaldo, No. A-3301-02 (App. Div. Feb. 23, 2004). Defendant's second petition for post-conviction relief was also denied by the trial court. Defendant now appeals that decision, raising the following points in his initial brief:

POINT ONE

THE TRIAL COURT SHOULD HAVE CONSIDERED DEFENDANT/APPELLANT'S SECOND PCR ON THE MERITS

A. THE ISSUES OF INEFFECTUAL COUNSEL WERE NEVER RULED UPON NOR RAISED, DURING THE FIRST PCR

B. THE LAW IS CLEAR THAT THE PCR JUDGE SHOULD NOT VIEW THE FACTS IN A VACUUM IN DECIDING EXCUSABLE NEGLECT

C. THE INTERESTS OF JUSTICE DEMAND THAT DEFENDANT/APPELLANT'S SECOND PCR BE CONSIDERED ON THE MERITS

POINT TWO

DEFENDANT/APPELLANT HAS ASSERTED SUSTAINABLE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL

A. TRIAL COUNSEL'S FAILURE TO CALL A REBUTAL BALLISTICS EXPERT SUPPORTS AN INEFFECTUAL ASSISTANCE OF COUNSEL CLAIM

B. THE FAILURE OF TRIAL COUNSEL TO RETAIN AN EXPERT DENIED THE DEFENDANT/APPELLANT A FAIR TRIAL

C. PCR AND APPELLATE COUNSEL WERE INEFFECTIVE

POINT THREE

DEFENDANT/APPELLANT SHOULD BE GIVEN AN EVIDENTIARY HEARING ON HIS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS

POINT FOUR

THE TRIAL JUDGE DID NOT PROVIDE SUFFICIENT FINDINGS OF FACTS AND CONCLUSORY LANGUAGE

POINT FIVE

THE COURT SHOULD HAVE GRANTED DEFENDANT/APPELLANT'S MOTION FOR DISCOVERY AND TO APPOINT COUNSEL

Defendant raises these points in his reply brief:

POINT I

THE STATE MISCHARACTERIZED THE GROUNDS FOR BAR RELAXATION BY IGNORING THE PROVISIONS OF R. 3:22-4, WHICH EXPRESSLY ALLOW FOR THE TIME BAR TO BE RELAXED ON THE GROUNDS RAISED.

POINT II

THE STATE'S RESPONSE MISCHARACTERIZES THE NATURE OF THE APPLICABLE HOLDINGS IN STATE V. MITCHELL AND THEREBY MISCHARACTERIZES THE GROUNDS UPON WHICH APPELLANT SOUGHT RELIEF.

POINT III

CONTRARY TO THE STATE'S RESPONSE, APPELLANT PRESENTED A PRIMA-FACIE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, AND THE STATE'S RELIANCE UPON FALSE "FACTS" AND TAINTED EVIDENCE FAILS.

A. The State's response includes utter untruths.

B. Tainted and lacking evidence is insufficient.

C. The Response is self-contradicting.

D. The Expert specifies the time in question.

POINT IV

THIS COURT NOW HAS GROUNDS TO VACATE THE CONVICTION.

The convictions arose out of the death of Craig Haddock, who was defendant's friend. Haddock was also the partner with Nicholas DiNorscio in a vending machine business. Haddock's body, found along Route 7, had twelve bullet wounds. His wallet, money, jewelry, and identification were on his person, but his keys to the vending machines, which he normally carried, were not found.

The evidence against defendant was circumstantial. The details are set forth in our earlier opinion and will not be repeated here. State v. Fuscaldo, No. A-5482-95 (App. Div. Aug. 27, 1997). We note that the victim was last seen at about 3:15 a.m. on Saturday, January 22, 1993, leaving a bar in a vehicle driven by defendant with DiNorscio, also a passenger. When Haddock did not return home that night or during the next day, his girlfriend and family members sought to locate him. Defendant's conduct was evasive and inconsistent with his being a good friend of Haddock. He refused to assist Haddock's girlfriend and family members in filing a missing persons report, claiming he did not feel well. There was some evidence that defendant was jealous of the friendship between his wife and Haddock. Defendant's story to Haddock's girlfriend and family members about when he had last seen Haddock was inconsistent with the State's evidence.

In addition, bullets were secured from Haddock's body and shell casings were found in the vicinity of the body. Although defendant initially denied to the police that he had a weapon, it was thereafter learned that defendant owned a nine-millimeter Glock model 19 firearm which he had purchased in 1991. Instructions for the use of a Glock firearm, its owner's manual, and other related materials were found in his home during a search conducted pursuant to a search warrant, but the gun was never located.

At trial, two experts provided ballistics evidence. Sergeant John Meyers testified that the shell casings found by the body had been fired from a Glock model 19 firearm because they had the rectangular markings that were unique to that firearm. Regarding the bullets found in the body, James Dobak expressed the opinion that only a Glock firearm produces the polygonal rifling evidenced on the bullets.

In support of his petition for post-conviction relief, defendant included an affidavit from James Edward Hamby, who holds a Ph.D. in forensic science firearms identification and who contradicts Dobak's testimony. Hamby states that a Glock is not the only weapon that uses polygonal rifling. Defendant contends that his trial counsel was ineffective for failing to obtain a ballistics expert to present this contrary testimony and that his appellate counsel and post-conviction relief counsel were ineffective for failing to raise this issue.

II

We note at the outset that defendant's second petition for post-conviction relief is untimely. A petition for post-conviction relief should be filed within five years of the judgment of conviction. R. 3:22-12(a). Defendant filed his second petition for post-conviction relief in February 2008, which is almost twelve years after his conviction. Under exceptional circumstances, the time limitations in Rule 3:22-12(a) may be relaxed pursuant to Rule 1:1-2. State v. Mitchell, 126 N.J. 565, 579-80 (1992). We may relax the Rule where there has been "excusable neglect or if the interests of justice demand it". State v. Milne, 178 N.J. 486, 492 (2004) (quoting State v. Goodwin, 173 N.J. 583, 594 (2002)). When determining whether to relax the time limitations in Rule 3:22-12(a), we must consider the length and reason for the delay, any prejudice in the delay to the State, and "the importance of the petitioner's claim in determining whether there has been an 'injustice' sufficient to relax the time limits." State v. Mitchell, supra, 126 N.J. at 580.

Here, defendant has not presented a sufficient reason for the delay to justify this extraordinary relief. He knew at the time of his trial and certainly after his conviction the importance of the ballistics evidence, and nothing precluded him from obtaining a rebuttal report in the five years after his conviction as he has done now. Thus, we do not find excusable neglect.

Further, the length of the delay here is substantial. He waited until twelve years after his conviction to bring this application. The longer a defendant has delayed in bringing his petition, the heavier his burden is in obtaining relief from the Rule, because retrial becomes more difficult with the passage of time. Ibid. As the Court has explained:

[T]he longer the time-span since the original trial, the more difficult a retrial becomes. Absent compelling, extenuating circumstances, the burden of justifying a petition filed after the five-year period will increase with the extent of the delay. The prejudice to the State's ability to litigate the case after a long delay is also relevant. If the key witnesses are unlikely to be available, evidence has disappeared, or other obstacles are present, allowing the petition for post-conviction relief will unduly prejudice the State's ability to bring its case.

[Ibid.]

The concern with the difficulties in retrying the case must, of course, be balanced against the issues raised in the petition, and whether the petitioner has set forth facts that raise a serious question about the validity of the conviction or sentence imposed. Ibid. Thus, we must consider whether defendant has raised a significantly serious issue that places the validity of his conviction into question. To do so, we weigh the merits of his post-conviction petition.

Post-conviction relief is appropriate where a defendant's substantial constitutional rights were violated in the conviction proceedings. R. 3:22-2(a). Claims of ineffective assistance of counsel implicate a defendant's constitutional right to counsel under both the federal and state constitution, Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2053, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). A defendant's constitutional right to counsel is violated where "counsel's performance has been so deficient as to create a reasonable probability that these deficiencies materially contributed to defendant's conviction." State v. Fritz, supra, 105 N.J. at 58.

The courts apply a two-pronged test when evaluating ineffective assistance of counsel claims. Strickland v. Washington, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. To prevail, defendant first must establish that defense counsel's performance was so deficient that "counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must establish that counsel's mistakes "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Ibid.

Defendant contends that his trial counsel was ineffective for failing to retain a ballistics expert to testify that the bullets could have come from a weapon that was not a Glock. However, the State relied on both the markings on the bullets and the markings on the shell casings to prove that the murder weapon was a Glock. While defendant has now come forward with expert testimony to refute the State's position with respect to the bullets, he has not come forward with evidence to refute the State's evidence on the shell casings. Thus, the shell casings still provide unrefuted evidence that the murder was accomplished with a Glock weapon.

Under these circumstances, defendant has not shown exceptional circumstances justifying the extraordinary relief he seeks.

 
Affirmed.

Because this matter was adjudicated in 2008, we apply the version of the court rules as they existed at that time and note that Rule 1:3-4 now prohibits relaxation of the time periods under Rule 3:22-12. See State v. Hicks, 411 N.J. Super. 370, 375 n.2 (App. Div. 2010).

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A-1407-08T4

August 2, 2010