NOT FOR PUBLICATION WITHOUT THE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-4592-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JONATHAN C. FUSCIARDI,
Defendant-Appellant.
___________________________
Submitted April 12, 2018 – Decided July 6, 2018
Before Judges Simonelli and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Warren County, Indictment No.
08-10-0417.
Joseph E. Krakora, Public Defender, attorney
for appellant (Jay L. Wilensky, Assistant
Deputy Public Defender, of counsel and on the
brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Jenny M. Hsu, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Jonathan C. Fusciardi appeals from his sentence for
a violation of probation (VOP) and from the June 24, 2016 Law
Division order, which denied his motion for reconsideration. On
appeal, defendant raises the following contentions:
POINT I
THE PRISON SENTENCE FOR VIOLATION OF PROBATION
IS INVALID BECAUSE IT WAS IMPOSED AFTER THE
EXPIRATION OF THE FIVE-YEAR PERIOD THAT IS THE
MAXIMUM ALLOWABLE PROBATIONARY TERM.
A. The Sentencing Court's Opinion.
B. Multiple Probationary Sentences
Aggregating More Than Five Years Are
Illegal.
C. The Illegality of the Sentence Is Not
Cured By Statutory Tolling.
We reject these contentions and affirm.
On October 21, 2008, defendant was charged in an accusation
with third-degree theft by deception (the underlying offense), and
admitted into the Hunterdon County pre-trial intervention (PTI)
program. On February 17, 2009, defendant was terminated from PTI
due to non-compliance. On April 21, 2009, he pled guilty to the
underlying offense.
On July 24, 2009, the court sentenced defendant to a two-year
non-custodial probationary term. The court ordered defendant to
comply with the standard conditions of probation, pay restitution,
and perform 100 hours of community service, among other conditions.
The court also imposed the appropriate assessments, penalties, and
fees.
2 A-4592-15T4
On August 4, 2010, defendant pled guilty to his first VOP.
On October 22, 2010, the court adjourned sentencing until December
17, 2010, to allow defendant an opportunity to improve his
cooperation and compliance with probation. However, three days
later, on October 25, 2010, he violated probation by testing
positive for opiates. He also failed to report to probation on
two occasions, satisfy his financial obligations, and complete
community service. On December 17, 2010, the court extended
defendant's probationary sentence for one year, until July 24,
2012, conditioned on serving 180 days in the county jail.
As of January 24, 2012, defendant still had not completed
community service or satisfied his financial obligations, and he
failed to report to probation several times. On January 24, 2012,
defendant pled guilty to his second VOP. He admitted he had a
drug addiction and asked to remain in the drug treatment program
he was then attending. He acknowledged the court would re-sentence
him for this VOP and he faced a maximum sentence of five-years
that the court could have imposed on the underlying offense. He
also acknowledged that if he violated probation over the next five
years, he faced a maximum five-year term of imprisonment.
On January 24, 2012, the court terminated defendant's
probationary sentence, imposed a five-year Drug Court probationary
sentence pursuant to N.J.S.A. 2C:35-14(a), and required him to
3 A-4592-15T4
comply with the conditions of probation and Drug Court. Five
months later, on June 27, 2012, defendant was administratively
discharged from Drug Court for failure to comply with treatment,
among other violations.
On July 17, 2012, defendant pled guilty to his third VOP. On
August 21, 2012, the court continued his Drug Court probation and
ordered him to comply with Drug Court rules and regulations,
successfully complete a long-term in-patient program, and comply
with all aftercare recommendations, among other conditions.
On May 20, 2013, the court issued a warrant for defendant's
arrest due to his failure to comply with Drug Court. He was
arrested on September 13, 2013. On July 24, 2014, his Drug Court
probation was transferred from Hunterdon County to Warren County.
On December 30, 2015, the court issued a warrant for his arrest
due to his non-compliance with Drug Court, fugitive status and
failure to submit to drug testing and report to probation.
On March 31, 2016, defendant pled guilty to his fourth VOP.
On April 28, 2016, the court revoked his Drug Court probation as
unimproved, imposed a three-year term of imprisonment, and awarded
him 344 days of jail credit.1
1
The court noted that defendant would be eligible for parole in
less than nine months. The records of the New Jersey Department
of Corrections indicate defendant was released on parole on August
4 A-4592-15T4
Defendant filed a motion for reconsideration. He argued, as
he does on appeal, that under N.J.S.A. 2C:45-2(a), the court could
only impose a maximum five-year probationary term on the underlying
offense from the date of the original sentence on July 24, 2009.
He posited that the three-year sentence imposed on April 28, 2016
was illegal because it was imposed after the expiration of the
five-year maximum probationary term he could have received at his
original sentencing. He concluded the court could only have
sentenced him on April 28, 2016 to either time served and
termination of probation as unimproved, or 364 days in the county
jail and termination of probation as unimproved.
In denying the motion, the court determined that N.J.S.A.
2C:45-2(a) applied to defendant's first VOP and authorized the
extension of his probation for an additional period not to exceed
the five year maximum. The court then determined that N.J.S.A.
2C:45-3(a)(4) applied to defendant's second VOP and authorized the
revocation of his probation, and N.J.S.A. 2C:45-3(b) authorized
the imposition of any sentence that might have been imposed
originally for the offense for which defendant was convicted,
including incarceration. The court found that in accordance with
N.J.S.A. 2C:45-3(a) and (b), defendant's original probation was
25, 2016, violated parole, was returned to prison on March 17,
2017, and was released on September 20, 2017.
5 A-4592-15T4
terminated and he was re-sentenced on January 24, 2012 to a new
five-year Drug Court probationary term, which did not expire until
after April 28, 2016. The court also found defendant's Drug Court
probation was revoked and he was re-sentenced to a three-year term
of imprisonment, which was the minimum sentence allowed for the
underlying offense. The court noted:
Defendant was given four chances to correct
his behavior: he was first admitted into the
PTI program; second, he was terminated from
PTI and given regular probation; third, an
extension of regular probation, and finally,
Drug Court probation. Furthermore, he has had
at least five (5) sanctions while on Drug
Court probation. His inability to comply with
the requirements of probation, Drug Court or
otherwise, reflect directly on the nature of
the person and his character, and the court
is now required to re-sentence him without
regard to the original sentence which placed
him on probation, which can be up to the
maximum penalty under the statute.
The court found that aggravating factors three and nine2
preponderated over the absent mitigating factors, and the
presumption of non-incarceration for defendant's third-degree
offense was overcome as he "demonstrated, time and time again,
that he is likely to reoffend (by victimizing others and their
2
N.J.S.A. 2C:44-1(a)(3), "[t]he risk that the defendant will
commit another offense;" N.J.S.A. 2C:44-1(a)(9),"[t]he need for
deterring the defendant and others from violating the law[.]"
6 A-4592-15T4
property), and that his antisocial behavior is incapable of being
amenable to probationary supervision." This appeal followed.
We review a judge's sentencing decision under an abuse of
discretion standard. State v. Fuentes, 217 N.J. 57, 70 (2014).
As directed by the Court, we must determine whether:
(1) the sentencing guidelines were violated;
(2) the aggravating and mitigating factors
found by the sentencing court were not based
upon competent and credible evidence in the
record; or (3) "the application of the
guidelines to the facts of [the] case makes
the sentence clearly unreasonable so as to
shock the judicial conscience."
[Ibid. (alteration in original) (quoting State
v. Roth, 95 N.J. 334, 364-65 (1984)).]
We discern no abuse of discretion here.
N.J.S.A. 2C:45-1 authorizes the court to sentence a defendant
to a probationary term and impose conditions and requirements of
probation. In imposing a probationary term, the court shall fix
the period of probation "not to exceed the maximum term which
could have been imposed or more than [five] years whichever is
lesser. The period of probation shall be fixed by the court at
not less than [one] year nor more than [five] years." N.J.S.A.
2C:45-2(a).
During the probationary period, the court may "modify the
requirements of probation imposed on the defendant; or . . . add
further requirements authorized by [N.J.S.A.] 2C:45-1." N.J.S.A.
7 A-4592-15T4
2C:45-2(b). The court "may" also extend probation for an
additional period not exceeding that authorized in N.J.S.A. 2C:45-
2(a) if the defendant fails "to fulfill conditions imposed pursuant
to . . . [N.J.S.A. 2C:45-1(b)(11)]."3 N.J.S.A. 2C:45-2(c)(1). The
court "shall" extend probation for an additional period not
exceeding that authorized in N.J.S.A. 2C:45-2(a) if the defendant
fails "to fulfill the conditions imposed pursuant to [N.J.S.A.
2C:45-1(c)]."4 N.J.S.A. 2C:45-2(c)(2).
At any time before the defendant is discharged from probation
or the probationary period is terminated, the court can revoke
probation "if satisfied that the defendant has inexcusably failed
to comply with a substantial requirement imposed as a condition
of the order," and "sentence or resentence the defendant, as
provided in this section." N.J.S.A. 2C:45-3(a)(4). Upon
revocation, N.J.S.A. 2C:45-3(b) authorizes the court to "impose
on the defendant any sentence that might have been imposed
originally for the offense of which he was convicted." For a
crime of the third degree, such as the underlying offense, the
court could impose a term of between three and five years. See
N.J.S.A. 2C:43-6(a)(3).
3
N.J.S.A. 2C:45-1(b)(11) requires the payment of a fine.
4
N.J.S.A. 2C:45-1(c) requires the payment of assessments and
restitution.
8 A-4592-15T4
Here, on July 24, 2009, the court imposed a two-year
probationary sentence. Defendant committed multiple VOPs
thereafter and never satisfied the conditions of probation. He
violated probation prior to the termination of the original
probationary period by testing positive for opiates and failing
to satisfy his financial obligations, among other violations. For
this VOP, N.J.S.A. 2C:45-2(b) and (c)(2) authorized the court to
extend his probationary sentence, which the court properly did for
one year.
Defendant violated probation prior to the termination of the
extended probationary period by failing to satisfy his financial
obligations and comply with other conditions of probation. At his
VOP hearing, he admitted he was drug addicted and asked to remain
in drug treatment. For this second VOP, N.J.S.A. 2C:45-3(a)(4)
authorized the court to terminate defendant's probation, and
N.J.S.A. 2C:45-3(b) authorized the court to impose a five-year
Drug Court probationary sentence, which is required by N.J.S.A.
2C:35-14(a):
whenever a drug or alcohol dependent person
who is subject to sentencing under this
section is convicted of . . . an offense, other
than one described in [N.J.S.A. 2C:35-14(b)],
the court, upon notice to the prosecutor, may,
on motion of the person, or on the court's own
motion, place the person on special probation,
which shall be for a term of five years[.]
9 A-4592-15T4
[(Emphasis added).]
Defendant was not convicted of a crime listed in N.J.S.A. 2C:35-
14(b).5 Accordingly, the five-year Drug Court probationary
sentence was proper, as it "might have been imposed originally for
the offense for which [defendant] was convicted." N.J.S.A. 2C:45-
3(b).
Defendant twice violated Drug Court probation for failure to
comply with treatment and non-compliance with Drug Court, among
other violations. For these VOPs, N.J.S.A. 2C:45-3(a)(4)
5
N.J.S.A. 2C:35-14(b) provides as follows:
A person shall not be eligible for special
probation pursuant to this section if the
person is convicted of or adjudicated
delinquent for:
(1) a crime of the first degree;
(2) a crime of the first or second degree
enumerated in [N.J.S.A. 2C:43-7.2(d)], other
than a crime of the second degree involving
[N.J.S.A.] 2C:15-1 (robbery) or [N.J.S.A.]
2C:18-2 (burglary);
(3) a crime, other than that defined in
[N.J.S.A.] 2C:35-7, for which a mandatory
minimum period of incarceration is prescribed
under chapter 35 of this Title or any other
law; or
(4) an offense that involved the distribution
or the conspiracy or attempt to distribute a
controlled dangerous substance or controlled
substance analog to a juvenile near or on
school property
10 A-4592-15T4
authorized the court to revoke defendant's Drug Court probation,
and N.J.S.A. 2C:45-3(b) authorized the court to impose a three-
year term of imprisonment on the underlying offense. See N.J.S.A.
2C:43-6(a).
We conclude that all of the probationary and prison sentences
imposed in this case for defendant's VOPs were legal sentences.
We have considered defendant's arguments to the contrary in light
of the record and applicable legal principles and conclude they
are without sufficient merit to warrant further discussion. R.
2:11-3(e)(2). Having reached this conclusion, we need not address
defendant's tolling argument.
Affirmed.
11 A-4592-15T4