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State v. Fuscaldo

August 2, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL FUSCALDO, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 15, 2010

Before Judges Rodríguez and Chambers.

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 ...


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