BREAKING: Appellate Court Dismisses All Charges Against Man Arrested in Wildwood Cold Case

TRENTON — An appellate court tossed a sexual assault case prosecutors brought last spring against a man they said raped a young female tourist in Wildwood in 1990. 
A three-judge panel in the New Jersey Appellate Division ruled March 29 that the trial court erred in not granting defendant Jerry Rosado’s motion to dismiss the case brought by the Cape May County Prosecutor’s Office, because the statute of limitations to bring charges had expired in 1995. 
The appellate court panel reversed the decision of Superior Court Judge Bernard E. DeLury Jr., who denied Rosado’s motion to dismiss the case. The appellate court remanded the case, directing the trial court to dismiss the criminal charge with prejudice.  The Herald was first to report on the appellate court decision. 
Rosado, born in 1959, was arrested April 8, 2022 for allegedly having sex with Susan Negersmith, while she was too drunk to consent, in Wildwood, over Memorial Day weekend in 1990. Rosado has been in the state’s custody since his arrest.
Negersmith was found dead behind a Wildwood bar/restaurant after a night of partying that included drinking and smoking marijuana, prosecutors said. Her blood alcohol content was determined to be .285 at the time of her death, according to the state, more than three-times the legal limit to drive.
Originally, her autopsy report declared her death “accidental,” however six years later, her death certificate was amended, now considering the death a “homicide.” Her murder remained unsolved in a case that both captivated and haunted the local community. 
When law enforcement arrested Rosado in April 2022, they charged him with second-degree sexual assault, alleging his DNA was a one in 380 million match with semen found on the victim. Nobody has ever been charged in Negersmith’s murder, a crime that has no statute of limitations.  
The suspect DNA profile identified in 1990 was sent to a lab in 2018 for genetic genealogy analysis, which led to Rosado being identified as a person of interest in the sexual assault crime. After identifying Rosado, the state obtained a warrant to get his DNA.
At a hearing after Rosado’s arrest, Deputy Public Defender Eric Shenkus, his lawyer, challenged that the state had even probable cause to make the arrest, arguing the state’s case centered around a specific timeframe when Negersmith was too intoxicated to consent to sex, and they were unable to prove the defendant was with the victim in that timeframe. 
In an interview after the appellate court’s decision to dismiss the charge, Shenkus said he felt the state certainly could not have proven the case beyond a reasonable doubt in front of a jury. 
However, winning the case on a legal argument having nothing to do with the strength of the evidence avoids any need to test that. Shenkus said Rosado maintains his innocence and “cooperated with the requests of the investigators during the course of the investigation” prior to his arrest.
The lawyer said he had not yet gotten a chance to inform Rosado of the appellate opinion, but said hoped to catch up with him later that day. Shenkus said his client will be released from custody as soon as the trial court signs the order dismissing the case, which should be within one day.
Rosado had one of his legs amputated and his health has declined since being arrested, his lawyer said. He is currently in custody at a hospital, according to Shenkus. 
The sexual assault statute, as written in 1990, the time of Rosado’s alleged offense, had a statute of limitations that ran for five years. The period to bring charges against Rosado expired in 1995.  In 1996, the law was changed eliminating the time limit to bring charges in a sexual assault. 
However, by then Rosado’s charges were already barred from prosecution and the new law clearly stated it was applicable only to “offenses not yet barred from prosecution under the statute of limitations.” Shenkus argued obviously the 1996 law eliminating the limitations did not apply to Rosado’s case.
The state argued that the limitations period should not apply to Rosado’s case because of a 2002 amendment to the statute, creating an exception for cases involving DNA or fingerprint analysis.
The amendment provides that “time does not start to run until the State is in possession of both the physical evidence and the DNA or fingerprint evidence necessary to establish the identification of the actor by means of comparison to the physical evidence.” 
In analyzing the arguments, the appellate court stated: “the question becomes whether, in amending the criminal statute of limitations in 2002, the Legislature intended to create a new statutory-limitations period applicable to previously expired limitations periods.” 
Judge Carmen Messano, Judge Robert J. Gilson, and Judge Katie A. Gummer, who made up the appellate court panel, decided that 2002 amendment could not revive an expired prosecution and “a plain reading of the statute and its amendments establishes that the 2002 amendment does not apply to an expired statutory-limitations period.” 
The appellate court further found that applying the 2002 amendment to Rosado’s case would violate his constitutional ex post facto rights, which prohibit legislatures from passing laws retroactively criminalizing behavior. 
In its opinion, the court recognized “the strong and legitimate desire to ensure that crimes are appropriately punished. As we have explained, however, criminal statutes of limitations involve a legislative judgment” of how to balance the public’s right to justice and the defendant’s rights to a speedy prosecution. 
The court found the legislature used that judgement when writing the 1990 law to include a five-year statute of limitations in sexual assault cases. Once that period ended, the court held the U.S. and New Jersey constitutions prohibit retroactive revival of prosecution.”
Prosecutors could not immediately be reached following the appellate court’s decision. They do have the option to appeal the decision to the New Jersey Supreme Court and could potentially make legal maneuvers to try to keep Rosado in custody until that time. 
“We’ll have to wait to see what they do. We’ll prepare to respond to it accordingly,” said Shenkus, adding it would require “extraordinary relief on the part of the appellate court with the Supreme Court” for the state to keep Rosado behind bars in the immediate future.  
Despite winning on the legal technicality, this is still justice to Shenkus, who always questioned the state’s evidence against his client in the case. 
“It’s always gratifying to get to a just result,” the lawyer said. “And in this case, that’s exactly what’s happened. The decision results in justice being done for Mr. Rosado.”
To reach Shay Roddy with news tips, questions or comments, email sroddy@cmcherald.com or call (609) 886-8600 ext. 142.