Opinion
DOCKET NO. A-3951-12T3
06-12-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL FUSCALDO, Defendant-Appellant.
John Vincent Saykanic argued the cause for appellant. Gioiella Mayer, Special Deputy Attorney/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Stephanie Davis Elson, Special Deputy Attorney General/ Acting Assistant Prosecutor, and Ms. Mayer, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 93-06-1327. John Vincent Saykanic argued the cause for appellant. Gioiella Mayer, Special Deputy Attorney/Acting Assistant Prosecutor, argued the cause for respondent (Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney; Stephanie Davis Elson, Special Deputy Attorney General/ Acting Assistant Prosecutor, and Ms. Mayer, on the brief). PER CURIAM
On June 9, 1993, a Hudson County Grand Jury returned Indictment Number 93-06-1327, charging defendant Michael Fuscaldo with the murder of Craig Haddock, N.J.S.A. 2C:11-3a(1) or 2C:11-3a(2), third degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, first degree conspiracy to murder Craig Haddock, N.J.S.A. 2C:5-2, and fourth degree unlawful disposal of a firearm, N.J.S.A. 2C:39-9d.
The Grand Jury also indicted and charged Dominick "Tommy" DiNorscio as codefendant and conspirator in the murder of Craig Haddock and with the related unlawful possession of a firearm. Lawrence Maturo was also separately charged in the indictment with hindering prosecution by aiding defendant and DiNorscio in evading apprehension and concealing evidence linking them to the murder of Craig Haddock. The charges were severed and each defendant was tried separately.
Defendant was tried before a jury on these charges over a period of ten days. On April 4, 1996, the jury found defendant guilty of first degree murder, second degree possession of a handgun for an unlawful purpose, third degree unlawful possession of a handgun, and fourth degree unlawful disposal of a firearm. The jury acquitted defendant of first degree conspiracy to murder Craig Haddock. The trial court denied defendant's motion for a judgment of acquittal or alternatively for a new trial. On May 10, 1996, the court sentenced defendant to an aggregate term of life imprisonment with thirty years of parole ineligibility.
Defendant appealed, arguing the evidence presented by the State was legally insufficient to sustain his conviction because the State did not prove defendant actually killed Craig Haddock. We rejected these arguments and affirmed defendant's conviction in an unpublished opinion. State v. Fuscaldo, No. A-5482-95 (App. Div. Aug. 27, 1997), certif. denied, 152 N.J. 189 (1997). On July 15, 1999, the United States District Court for the District of New Jersey denied defendant's petition for a writ of habeas corpus filed pursuant to 28 U.S.C.A. § 2254. Fuscaldo v. Morton, No. 98-5093 (D.N.J. July 15, 1999). Thereafter, by order dated October 23, 2000, the United States Court of Appeals for the Third Circuit denied defendant's request for a certificate of appealability.
On April 30, 2001, defendant, represented by private counsel, filed his first post-conviction relief (PCR) petition, alleging ineffective assistance of counsel. Defendant claimed his trial attorney was "saddled with a monumental conflict of interest" involving codefendant DiNorscio, rendering him ethically incapable of providing independent representation. Defendant also sought an order compelling the State to reveal the identity of a confidential informant. The PCR court conducted an evidentiary hearing on November 7, 2002, during which a total of five witnesses testified, including defendant, his trial counsel, and the attorney who represented DiNorscio.
On February 13, 2003, the PCR judge issued an oral opinion denying defendant's petition. The PCR judge found defendant's trial counsel and DiNorscio's trial counsel occupied a common professional office area and at times shared clerical support staff. Despite this association, defendant did not present sufficient competent evidence establishing his trial counsel had a conflict of interest during the time he represented defendant. Applying the standard established by the Supreme Court in State v. Bellucci, 81 N.J. 531 (1980), the PCR judge concluded defendant had not presented any grounds requiring a new trial:
[T]hese lawyers maintain separate files and filings. They had separate bank accounts. Each employed his own secretary independently of the other. Each had individual phone lines and after-hours answering machines, with separate and distinct messages identifying the attorney for each office the party had reached. Each was independently responsible for the payment of his rental obligation. Each had their own separate letterhead and business cards.
The PCR Judge also denied as untimely defendant's request that the identity of the confidential informant be revealed. We affirmed the judge's decision denying defendant's PCR petition in an unpublished Per Curiam opinion. State v. Fuscaldo, No. A-3301-02 (App. Div. Feb. 23, 2004). On or about February 8, 2008, defendant filed a pro se second PCR petition, once again claiming ineffective assistance of trial counsel as the basis for relief. This time, defendant listed a number of alleged errors committed by his trial attorney and again requested an evidentiary hearing.
By order dated September 24, 2008, the same judge who heard and decided the first PCR petition denied defendant's second petition. In a letter dated the same date and attached to the order, the judge advised defendant that his petition was time-barred under Rule 3:22-12(a) because it was filed more than five years after May 13, 1996, the date the trial judge signed the judgment of conviction. The judge also noted defendant had not presented any evidence "demonstrating your failure to timely file this petition was due to excusable neglect." Finally, the judge reminded defendant that "you raised, and then later withdrew your contention of ineffectiveness of counsel in your first post-conviction application (May 2001)[.]" Under these circumstances, the judge concluded defendant was not entitled to court-appointed counsel to assist him in prosecuting this second PCR petition.
We affirmed the court's decision. State v. Fuscaldo, No. A-1407-08 (App. Div. Aug. 2, 2010), certif. denied, 205 N.J. 273 (2011). In this opinion, we specifically noted and rejected defendant's arguments attacking alleged deficiencies in the ballistic evidence presented by the State at defendant's trial.
On April 13, 2012, defendant, represented by counsel, filed a "Notice of Motion for an Order Vacating the Convictions and Dismissing the Indictment; [or,] Alternatively, Granting the Motion for a New Trial." This "motion" again challenged the ballistic evidence. Following oral argument, the same judge who heard and decided defendant's two previous PCR petitions concluded that, despite the label, the relief requested by defendant was in the form of a third PCR petition. After considering the arguments of counsel, the judge denied defendant's third petition. The judge gave a detailed oral explanation in support of his ultimate determination. Specifically, the judge found:
Here, the State clearly conceded that not only were they unable to directly link the defendant's Glock to the murder but they also conceded that there were literally thousands of other weapons that might possibly be the murder weapon. The only relevance of the State's testimony on this issue was to show that the defendant's weapon could possibly be the murder weapon. In the absence of evidence excluding that possibility, it matters not whether the odds were one in a thousand, one in ten thousand, or even one in a million. None of those possibilities would amount to proof beyond a reasonable doubt to a rational juror.
It was not a calculation of mathematical probabilities that led the jury
to conclude that the defendant's weapon was the murder weapon and that the defendant was guilty of the murder. Rather, it was the substantial, credible, and persuasive circumstantial evidence that led to the defendant's conviction. The ballistics evidence . . . was but one of many interlocking items of evidence that, taken in combination, established this defendant's guilt.
Ultimately, the trial court rejected defendant's third PCR petition as untimely under Rule 3:22-12(a). Defendant now appeals from this decision of the trial court raising the following arguments:
POINT I
THE DEFENDANT SHOULD BE GRANTED A NEW TRIAL BASED UPON NEWLY DISCOVERED EVIDENCE, THE COURT BELOW ERRED IN DENYING THE MOTION AND BY INCORRECTLY INTERPRETING THE MOTION AS A PETITION FOR POST-CONVICTION RELIEF.
POINT II
THE ORDER OF THE COURT BELOW SHOULD BE REVERSED AS THE STATE'S USE OF FALSE AND/OR PERJURED EXPERT TESTIMONY (THAT IT KNEW OR SHOULD HAVE KNOWN WAS FALSE) TO ESTABLISH DEFENDANT'S GUILT VIOLATED HIS RIGHT TO DUE PROCESS UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS MANDATING A VACATION OF HIS CONVICTIONS AND DISMISSAL OF THE INDICTMENT OR, AT THE VERY LEAST, A NEW TRIAL.
We reject these arguments and affirm. We will not recite the facts that led to defendant's conviction. Instead, we incorporate by reference the facts we described in our opinion affirming defendant's conviction on direct appeal. Fuscaldo, supra, No. A-5482-95 (App. Div. Aug. 27, 1997) (slip op. at 5-11). Defendant first argues the trial judge incorrectly viewed this application as a third PCR petition, governed by the time restrictions in Rule 3:22-12. Defendant argues the trial court should have considered defendant's application as a motion for a new trial based on newly discovered evidence under Rule 3:20-1, which provides:
The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. If trial was by the judge without a jury, the judge may, on defendant's motion for a new trial, vacate the judgment if entered, take additional testimony and direct the entry of a new judgment. The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
[(Emphasis added).]
It is well-settled that we may affirm the final order or judgment entered by the trial court on grounds other than those considered by the trial court to support its ultimate ruling. See State v. Maples, 346 N.J. Super. 408, 417 (App. Div. 2002). Based on this standard, we need not determine whether the trial court's characterization of defendant's application as a third PCR petition was correct because we are satisfied defendant's application was correctly rejected even if it is viewed as a motion brought under Rule 3:20-1.
Our Supreme Court has recently reaffirmed the standard a court must use in deciding whether to grant or deny a motion for a new trial based on newly discovered evidence:
Evidence is newly discovered and sufficient to warrant the grant of a new trial when it is "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted.
[State v. Nash, 212 N.J. 518, 549 (2013) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).]
Defendant's latest attempt at overturning his conviction is without merit because it does not meet this three-pronged standard. The affidavit or report of the ballistics expert merely rehashes what has been presented and rejected at least twice before by the trial court and this court.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION