TRENTON – A state Appeals Court has upheld an Upper Township man’s guilty plea on drug and weapons charges, rejecting his claim that the substance he sold twice to an undercover detective on South Shore Road, in Marmora, in 2014, was not illegal at the time.
In a Nov. 22 ruling, a three-judge appellate panel upheld multiple convictions against Angelo Cuculino, but sent his case back to the trial court for a new sentencing.
According to the ruling from Judges Jack M. Sabatino, Thomas W. Sumners, and Richard J. Geiger, Cuculino pleaded guilty to multiple counts, including the distribution of a drug called alpha-pyrrolidinopentiophenone, referred to in the court documents as alpha-PVP.
Sometimes referred to as “flakka,” it’s one of the “designer drug” ingredients sold as bath salts. Sources describe it as a stimulant, with side effects that include paranoia and hallucinations.
According to the court documents, Detective Ashlee Lucariello bought bags of the drug twice from Cuculino, while working undercover as part of a Cape May County Prosecutor’s Office task force, setting up a meeting on South Shore Road, entering his Jeep, and paying $80 for a back of the rock-like material.
According to testimony referenced in the court documents, she had arranged to buy “Mollie,” a name for MDMA, commonly called Ecstasy, a drug formerly used in psychotherapy before a federal ban in 1985.
After the second drug buy, a court-approved a search warrant Oct. 16, 2014, and Cuculino was stopped while driving, and arrested with $2,896 in his pockets.
A search of his Marmora home found a bag containing another bath salt, methylone, along with several firearms, including a .22 caliber handgun with an empty magazine, 100 .22 rounds, a 12-gauge shotgun, and a rifle behind the furnace. The court documents state Cuculino can’t legally possess a firearm because of a 1995 conviction of endangering the welfare of a child.
Five cell phones were found in his Jeep, according to the court documents.
Sold under a variety of names and containing any number of drugs manufactured by an unlicensed chemist, bath salts have presented a challenge to law enforcement.
Media coverage of an assault in Miami, in May 2012, brought bath salts to national attention. Officials initially connected the attack to bath salts, but no such drugs were found in the attacker’s system. Still, the drugs remain connected to psychotic rage and cannibalism in the public consciousness.
In Cuculino’s case, the grand jury presentation included testimony that the bath salts could not be used for bathing, according to court documents. None of the seized firearms were registered, the grand jury was also told.
Cuculino pleaded guilty to all counts May 23, 2016, but sought to rescind that plea before sentencing. He raised a series of issues, alleging that his defense attorney was not properly prepared, that he had a medical condition, that the court did not accommodate his illness, and that others brought the weapons to his house. He also argued that the substance he sold to the detective was not listed as a controlled dangerous substance at the time.
The court sentenced him to multiple terms, from four to six years in each. Taken together, they worked out to a 24-year prison sentence, with five years of parole ineligibility.
Of Cuculino’s arguments, the Appeals Court spent the most time on the question of whether alpha-PVP was legal when he sold it. The state Legislature approved laws banning the substance in August 2017, years after he sold it.
The government can’t hold someone criminally responsible for actions taken before those actions were made illegal, under a principle described by the Latin phrase “Ex Post Facto.”
The Appeals Court found that the substance was previously listed as schedule 1 at the federal level in 2014, before the sale, under a two-year temporary designation. The courts use the designation of a “controlled dangerous substance,” or CDS, to refer to illegal drugs. The court found that Cuculino had every reason to believe he was selling something illegal at the time of the transaction.
“He does not claim that he relied on any publication or the absence of such publication to determine if alpha-PVP was classified as a CDS,” the decision reads. “Indeed, the clandestine nature of the sales to the undercover officer bespeaks knowing it was unlawful to possess or distribute alpha-PVP.”
The decision states that Cuculino admitted he knew the sale was illegal, and even if he did not, ignorance of the law is not a valid defense in court.
In a 47-page decision, the Appeals Court also found that his defense attorney was properly prepared, and rejected his assertion that the search warrant allowing the search of his home was not valid.
The court sent the case back for a new sentencing, with instructions to consider whether the terms should be consecutive or concurrent, and provide its reasoning.
The court wrote, “Defendant’s remaining arguments are without sufficient merit to warrant discussion in a written opinion.”
To contact Bill Barlow, email firstname.lastname@example.org.
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