                        NOT FOR PUBLICATION WITHOUT THE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
