NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1398-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL FUSCALDO,
Defendant-Appellant.
Submitted December 4, 2025 – Decided March 6, 2026
Before Judges Marczyk and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 93-06-1327.
Michael Fuscaldo, self-represented appellant.
Wayne Mello, Acting Hudson County Prosecutor, attorney for respondent (Josemiguel DeJesus Rodriguez, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Michael Fuscaldo appeals from the December 6, 2024 Law
Division order denying his motion for resentencing. We affirm.
I.
On April 4, 1996, a jury found defendant guilty of: first-degree murder,
N.J.S.A. 2C:11-3(a)(1) or (2) (count one); third-degree unlawful possession of
a handgun, N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a
handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and fourth-
degree unlawful disposal of a firearm, N.J.S.A. 2C:39-9(d) (count four). He was
acquitted of conspiracy to commit murder, N.J.S.A. 2C:5-2(a) (count five).
Defendant was sentenced to life imprisonment with a thirty-year mandatory
minimum term on count one, which merged with count three; a concurrent five-
year prison term on count two; and a concurrent eighteen-month prison term on
count four.
The sentence was based on the judge's finding of the following
aggravating and mitigating factors: on the murder charge, the judge found
aggravating factors one, N.J.S.A. 2C:44-1(a)(1) ("[t]he nature and
circumstances of the offense, and the role of the actor in committing the offense,
including whether or not it was committed in an especially heinous, cruel, or
depraved manner"); two, N.J.S.A. 2C:44-1(a)(2) ("[t]he gravity and seriousness
A-1398-24 2 of harm inflicted on the victim, including whether or not the defendant knew or
reasonably should have known that the victim of the offense was particularly
vulnerable or incapable of resistance due to advanced age, ill-health, or extreme
youth, or was for any other reason substantially incapable of exercising normal
physical or mental power of resistance"); three, N.J.S.A. 2C:44-1(a)(3) ("[t]he
risk that the defendant will commit another offense"); and nine, N.J.S.A. 2C:44-
1(a)(9) ("[t]he need for deterring the defendant and others from violating the
law"). He also found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) ("[t]he
defendant has no history of prior delinquency or criminal activity or has led a
law-abiding life for a substantial period of time before the commission of the
present offense").
The judge explained his reasons in finding aggravating factor three:
I see at page three of the [presentence report (PSR)] that there is some substance abuse. This defendant was introduced to marijuana at age seventeen, last used marijuana approximately six months ago. Whenever there is even the slightest indication of substance abuse, this court believes that the defendant was a risk to commit another offense.
In imposing a life sentence, the judge "focus[ed] on aggravating factor one" and
determined the aggravating factors outweighed the mitigating factors. For both
A-1398-24 3 weapons offenses, the judge found aggravating factors three and nine , along
with mitigating factor seven, "for the aforementioned reason[s]."
We affirmed the conviction in an unpublished decision. State v. Fuscaldo,
No. A-5482-95 (App. Div. Aug. 27, 1997), certif. denied, 152 N.J. 189 (1997).
We also affirmed the orders denying defendant's three successive petitions for
post-conviction relief.1
In October 2024, defendant moved for resentencing pursuant to Rule 3:21-
10(b)(5), which permits the correction of "a sentence not authorized by law
including the Code of Criminal Justice." Citing N.J.S.A. 2C:52-6.1 and State v.
Gomes, 253 N.J. 6 (2023), defendant contended the sentencing judge erred by
considering his prior marijuana use in finding aggravating factor three. On
December 6, 2024, the motion judge issued an order denying the motion,
accompanied by a written opinion.
II.
On appeal, defendant presents the following point for our consideration:
1 State v. Fuscaldo, No. A-3301-02 (App. Div. Feb. 23, 2004), certif. denied, 180 N.J. 355 (2004); State v. Fuscaldo, No. A-1407-08 (App. Div. Aug. 2, 2010), certif. denied, 205 N.J. 273 (2011); State v. Fuscaldo, No. A-3951-12 (App. Div. June 12, 2015), certif. denied, 223 N.J. 404 (2015). A-1398-24 4 IF DEFENDANT'S USE OF MARIJUANA HAS BEEN DEEMED TO "NOT TO HAVE OCCURRED[,]" SEE [GOMES, 253 N.J. 6,] THEN THE USE OF THIS FACT TO ENHANCE DEFENDANT'S SENTENCE, VIA AGGRAVATING FACTOR [THREE], RENDERS DEFENDANT'S CURRENT SENTENCE NOT AUTHORIZED BY LAW [(R. 3:21-10(b)(5))] AND AS SUCH, REQUIRES THE COURT TO RESENTENCE DEFENDANT ON ALL COUNTS.
Because a court's denial of a motion to correct an illegal sentence is an
issue of law, we review the decision de novo. State v. Drake, 444 N.J. Super.
265, 271 (App. Div. 2016). "[A]n illegal sentence is one that 'exceeds the
maximum penalty . . . for a particular offense' or a sentence 'not imposed in
accordance with law.'" State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State
v. Murray, 162 N.J. 240, 247 (2000)). This "includes a sentence 'imposed
without regard to some constitutional safeguard.'" State v. Zuber, 227 N.J. 422,
437 (2017) (quoting State v. Tavares, 286 N.J. Super. 610, 618 (App. Div.
1996)). There is no temporal limit on a court's ability to review an illegal
sentence; it can be corrected "at any time." Acevedo, 205 N.J. at 47 n.4 (quoting
R. 3:21-10(b)(5)). "If a defendant's sentence is illegal, a reviewing court must
remand for resentencing." State v. Steingraber, 465 N.J. Super. 322, 328 (App.
Div. 2020) (citing State v. Romero, 191 N.J. 59, 80-81 (2007)).
A-1398-24 5 Given the motion judge's cogent analysis, our de novo review need not be
extensive. Among other provisions, the New Jersey Cannabis Regulatory,
Enforcement Assistance, and Marketplace Modernization Act (CREAMMA)
mandated the expungement of any "conviction or adjudication of delinquency
solely for one or more crimes or offenses involving manufacturing, distributing,
or dispensing, or possessing or having under control with intent to manufacture,
distribute, or dispense, marijuana or hashish." N.J.S.A. 2C:52-6.1. Under
Gomes, our Supreme Court explained the legislative intent of CREAMMA was
that "any arrest, charge, conviction, or adjudication of delinquency, and
proceedings related" to the "broad list of marijuana or hashish offenses . . .
would be deemed not to have occurred." 253 N.J. at 30 n.10 (emphasis omitted).
Because CREAMMA addressed the expungement of a conviction or
adjudication of delinquency for a marijuana-related offense, it did not apply to
defendant because he did not have a prior conviction or adjudication. As the
motion judge found:
Free access — add to your briefcase to read the full text and ask questions with AI
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-1398-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MICHAEL FUSCALDO,
Defendant-Appellant.
Submitted December 4, 2025 – Decided March 6, 2026
Before Judges Marczyk and Puglisi.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 93-06-1327.
Michael Fuscaldo, self-represented appellant.
Wayne Mello, Acting Hudson County Prosecutor, attorney for respondent (Josemiguel DeJesus Rodriguez, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
PER CURIAM Defendant Michael Fuscaldo appeals from the December 6, 2024 Law
Division order denying his motion for resentencing. We affirm.
I.
On April 4, 1996, a jury found defendant guilty of: first-degree murder,
N.J.S.A. 2C:11-3(a)(1) or (2) (count one); third-degree unlawful possession of
a handgun, N.J.S.A. 2C:39-5(b) (count two); second-degree possession of a
handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and fourth-
degree unlawful disposal of a firearm, N.J.S.A. 2C:39-9(d) (count four). He was
acquitted of conspiracy to commit murder, N.J.S.A. 2C:5-2(a) (count five).
Defendant was sentenced to life imprisonment with a thirty-year mandatory
minimum term on count one, which merged with count three; a concurrent five-
year prison term on count two; and a concurrent eighteen-month prison term on
count four.
The sentence was based on the judge's finding of the following
aggravating and mitigating factors: on the murder charge, the judge found
aggravating factors one, N.J.S.A. 2C:44-1(a)(1) ("[t]he nature and
circumstances of the offense, and the role of the actor in committing the offense,
including whether or not it was committed in an especially heinous, cruel, or
depraved manner"); two, N.J.S.A. 2C:44-1(a)(2) ("[t]he gravity and seriousness
A-1398-24 2 of harm inflicted on the victim, including whether or not the defendant knew or
reasonably should have known that the victim of the offense was particularly
vulnerable or incapable of resistance due to advanced age, ill-health, or extreme
youth, or was for any other reason substantially incapable of exercising normal
physical or mental power of resistance"); three, N.J.S.A. 2C:44-1(a)(3) ("[t]he
risk that the defendant will commit another offense"); and nine, N.J.S.A. 2C:44-
1(a)(9) ("[t]he need for deterring the defendant and others from violating the
law"). He also found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) ("[t]he
defendant has no history of prior delinquency or criminal activity or has led a
law-abiding life for a substantial period of time before the commission of the
present offense").
The judge explained his reasons in finding aggravating factor three:
I see at page three of the [presentence report (PSR)] that there is some substance abuse. This defendant was introduced to marijuana at age seventeen, last used marijuana approximately six months ago. Whenever there is even the slightest indication of substance abuse, this court believes that the defendant was a risk to commit another offense.
In imposing a life sentence, the judge "focus[ed] on aggravating factor one" and
determined the aggravating factors outweighed the mitigating factors. For both
A-1398-24 3 weapons offenses, the judge found aggravating factors three and nine , along
with mitigating factor seven, "for the aforementioned reason[s]."
We affirmed the conviction in an unpublished decision. State v. Fuscaldo,
No. A-5482-95 (App. Div. Aug. 27, 1997), certif. denied, 152 N.J. 189 (1997).
We also affirmed the orders denying defendant's three successive petitions for
post-conviction relief.1
In October 2024, defendant moved for resentencing pursuant to Rule 3:21-
10(b)(5), which permits the correction of "a sentence not authorized by law
including the Code of Criminal Justice." Citing N.J.S.A. 2C:52-6.1 and State v.
Gomes, 253 N.J. 6 (2023), defendant contended the sentencing judge erred by
considering his prior marijuana use in finding aggravating factor three. On
December 6, 2024, the motion judge issued an order denying the motion,
accompanied by a written opinion.
II.
On appeal, defendant presents the following point for our consideration:
1 State v. Fuscaldo, No. A-3301-02 (App. Div. Feb. 23, 2004), certif. denied, 180 N.J. 355 (2004); State v. Fuscaldo, No. A-1407-08 (App. Div. Aug. 2, 2010), certif. denied, 205 N.J. 273 (2011); State v. Fuscaldo, No. A-3951-12 (App. Div. June 12, 2015), certif. denied, 223 N.J. 404 (2015). A-1398-24 4 IF DEFENDANT'S USE OF MARIJUANA HAS BEEN DEEMED TO "NOT TO HAVE OCCURRED[,]" SEE [GOMES, 253 N.J. 6,] THEN THE USE OF THIS FACT TO ENHANCE DEFENDANT'S SENTENCE, VIA AGGRAVATING FACTOR [THREE], RENDERS DEFENDANT'S CURRENT SENTENCE NOT AUTHORIZED BY LAW [(R. 3:21-10(b)(5))] AND AS SUCH, REQUIRES THE COURT TO RESENTENCE DEFENDANT ON ALL COUNTS.
Because a court's denial of a motion to correct an illegal sentence is an
issue of law, we review the decision de novo. State v. Drake, 444 N.J. Super.
265, 271 (App. Div. 2016). "[A]n illegal sentence is one that 'exceeds the
maximum penalty . . . for a particular offense' or a sentence 'not imposed in
accordance with law.'" State v. Acevedo, 205 N.J. 40, 45 (2011) (quoting State
v. Murray, 162 N.J. 240, 247 (2000)). This "includes a sentence 'imposed
without regard to some constitutional safeguard.'" State v. Zuber, 227 N.J. 422,
437 (2017) (quoting State v. Tavares, 286 N.J. Super. 610, 618 (App. Div.
1996)). There is no temporal limit on a court's ability to review an illegal
sentence; it can be corrected "at any time." Acevedo, 205 N.J. at 47 n.4 (quoting
R. 3:21-10(b)(5)). "If a defendant's sentence is illegal, a reviewing court must
remand for resentencing." State v. Steingraber, 465 N.J. Super. 322, 328 (App.
Div. 2020) (citing State v. Romero, 191 N.J. 59, 80-81 (2007)).
A-1398-24 5 Given the motion judge's cogent analysis, our de novo review need not be
extensive. Among other provisions, the New Jersey Cannabis Regulatory,
Enforcement Assistance, and Marketplace Modernization Act (CREAMMA)
mandated the expungement of any "conviction or adjudication of delinquency
solely for one or more crimes or offenses involving manufacturing, distributing,
or dispensing, or possessing or having under control with intent to manufacture,
distribute, or dispense, marijuana or hashish." N.J.S.A. 2C:52-6.1. Under
Gomes, our Supreme Court explained the legislative intent of CREAMMA was
that "any arrest, charge, conviction, or adjudication of delinquency, and
proceedings related" to the "broad list of marijuana or hashish offenses . . .
would be deemed not to have occurred." 253 N.J. at 30 n.10 (emphasis omitted).
Because CREAMMA addressed the expungement of a conviction or
adjudication of delinquency for a marijuana-related offense, it did not apply to
defendant because he did not have a prior conviction or adjudication. As the
motion judge found:
The sentencing [judge] simply made reference to [defendant's] prior marijuana usage, which was noted in the [PSR], as a reason he may commit another offense. Additionally, there are no prior criminal marijuana proceedings referenced during the sentencing. In fact, the [judge] found mitigating factor seven on each count, meaning [he] acknowledged [defendant had] no prior criminal history.
A-1398-24 6 Pursuant to N.J.S.A. 2C:44-6(b), the PSR
shall . . . include information regarding the defendant's history of substance use disorder and substance use disorder treatment, if any, including whether the defendant has sought treatment in the past. If any of the factors listed in [N.J.S.A. 2C:35-14.1(b)] apply, the [PSR] shall also include consideration of whether the defendant may be a person with a substance use disorder as defined in N.J.S.[A.] 2C:35-2.
Here, the PSR indicated defendant admitted to having used marijuana,
which was a controlled dangerous substance at the time, within the year
preceding his arrest. See N.J.S.A. 2C:35-14.1(b)(6). Thus, the sentencing judge
did not abuse his discretion by considering defendant's prior marijuana use in
determining aggravating factor three.
The motion judge found that even if aggravating factor three were excised
from the sentencing equation, "defendant [was] still looking at the exact same
sentence, given the charges and the sentencing [judge]'s case-specific weighing
of each factor." Defendant's arguments on appeal do not convince us otherwise.
Affirmed.
A-1398-24 7