Judge: Indictment Against Wildwood Officials May Be ‘Fatally Flawed’

COURT HOUSE – A judge said he will wait for further submissions before ruling on a motion brought by former Wildwood Mayor Ernie Troiano Jr. to dismiss the indictment against him, charging Troiano with unlawfully taking health benefits while serving as the city’s mayor. 
In oral arguments on the motion, heard May 19 before Superior Court Judge Bernard E. DeLury Jr., Brian Pelloni, Troiano’s lawyer, argued the indictment should be dismissed because the grand jury presentment by the state was procedurally improper.  
A state grand jury handed up a true bill March 10, finding the state established probable cause to proceed with charges against Troiano, current Wildwood Mayor Pete Byron and Steve Mikulski, a city commissioner. 
Each was indicted on the same four counts: second-degree official misconduct, second-degree theft by unlawful taking, third-degree tampering with public records, and fourth-degree falsifying or tampering with records. 
However, Pelloni argued the three cases should never have been presented together in the first place and that, since the presentment was made over multiple days, some grand jurors had to rely on transcripts of testimony from witnesses they were not there to see live, creating issues with their ability to determine credibility. 
Brian Uzdavinis, the deputy attorney general prosecuting the case, told DeLury a 23-member jury panel was assembled and part of the case was presented Feb. 17, including live testimony from Susan Maxwell, a confidential assistant to the commissioners who worked for both Troiano and the current administration. However, Juror 1, Juror 3, Juror 8, Juror 15, Juror 17, Juror 21, and Juror 23 were all absent that day, according to the deputy attorney general.
When the panel was reconvened Feb. 24 to hear more evidence, a transcript of Maxwell’s testimony was provided to Juror 1, Juror 3, Juror 17 and Juror 23, according to the state. March 10, the day of deliberations, Juror 15 and Juror 21 received and read the Maxwell transcript before deliberating, said Uzdavinis, who added Juror 8 was absent both times and did not deliberate. 
The transcript procedure was undertaken by court officials and prosecutors did not have any off-the-record contact with jurors related to it, the state said. 
Uzdavinis told the court that in the state’s eyes, Maxwell had serious credibility problems, having given conflicting statements to state investigators and defense investigators. He said the state wanted to get her under oath. 
“She said a few things that directly contradicted herself, her prior statements. Even during that presentation (under oath), she answered a question one way in the beginning and at the end she answered it a different way,” Uzdavinis told the court. 
However, the judge pointed to Court Rule 3:6, which governs grand jury proceedings in New Jersey. DeLury read part of the rule in court: “Jurors who vote in a case must have been present and have heard all of the evidence presented.”
The procedure followed in this case doesn’t seem to adhere to that part of the rule, DeLury said. 
“Whether it’s the court’s process or it’s the state’s process, it doesn’t appear that, by using transcripts, that equals be present and have heard,” said the judge, adding he is unaware of any case law addressing it. 
DeLury gave both sides until June 2 to brief the issue and requested a certification from the state corroborating the factual account they put on the record in court and clarifying which jurors heard what and which jurors voted. He said he planned to rule by June 12, in advance of the case’s next listing of June 23. 
Although the motion was brought solely by Troiano, because all three co-defendants were part of the same indictment, it is likely a dismissal of the indictment for one would result in a dismissal of the indictment for all. Attorneys for Byron and Mikulski could not be reached by the Herald after court to confirm. 
Pelloni has said it’s his office’s policy not to speak to the media at all during an open case. 
Multiple attorneys not involved in the case, but with experience in New Jersey criminal law, told the Herald that even if Troiano’s motion is successful, the indictment would likely be dismissed without prejudice, meaning the state could bring the charges back before a different grand jury panel and attempt to reindict it. 
Pelloni said there are other issues with the state’s case. 
“All of the charges in this case stem from the presumption that my client didn’t work 35 hours a week. So, the question of whether he worked the hours is really the central question that should have been presented to the grand jury. It should have been decided by them because if they find that he worked 35 hours, it doesn’t matter whether the classification was full-time, part-time, elected official, unclassified, whether the time sheets were accurate, whether they were inaccurate. None of that matters if he was working the 35 hours, because then he was entitled to the benefits and any of the charges go away,” Pelloni argued.  
Pelloni said the state gave the grand jury the opinions of different witnesses about what full-time means, but failed to answer a straightforward legal question asked by the panel. 
“There was a question asked by the grand jury, ‘where does it say the 35 hours had to be worked at City Hall?’ That’s a crucial question because the nature of my client’s position, as the mayor, was he couldn’t do his job in city hall. Sitting behind a desk from 9 a.m. to 4 p.m. wasn’t doing his job as mayor. He had to be at city events. He had to be at meetings throughout the state,” Pelloni argued. 
However, Uzdavinis said the law, legislative history and an interpretive local finance notice issued by the Department of Community Affairs addressing the issue were all presented to grand jurors.
Addressing whether the three cases should have been presented together, Uzdavinis said joinder was appropriate.
“They hold the same elected positions in the same municipality. They’re subject to the same state health benefits law. They use the same types of timekeeping records. They were seen and observed by the same witnesses,” Uzdavinis argued. “It needs to be viewed as a whole to get at this notion of this fiction that these are full-time positions, full-time positions that entitle them to these state health benefits, merely because they say that they are.” 
Troiano’s attorney said the state also failed to present any exculpatory evidence it had to the panel. Maxwell, Pelloni said, was not asked about if Troiano worked the requisite 35 hours while testifying for the grand jury. She knew his schedule better than anyone, according to the lawyer. 
“The fact that she was the one witness who clearly provides that 35 hours and the fact that the state wasn’t intending to include that in the indictment I think is very telling,” Pelloni argued. 
“If there are certain factual disputes that’s not really for the grand jury to determine,” argued the prosecutor. 
Uzdavinis added that Troiano and Byron were advised, along with unindicted former Commissioner Anthony Leonetti, in multiple meetings around 2016 and 2017, by then-City Administrator Christopher Fox and then-City Solicitor Mary Bittner “you’re not really full-time. You’re not putting in the hours. You’re not eligible for benefits. This has to stop.” 
It was then, Leonetti removed himself from enrollment in the benefits program, according to the prosecutor. But Byron and Troiano defied the warnings and continued collecting benefits, according to the state’s argument. 
While not making any decision on the motion to dismiss, pending the follow-up submissions, DeLury seemed persuaded by Troiano’s argument.  
“I’m not, at this point, persuaded on of the firmness of the state’s presentation today on the issue relative to presentation of transcripts as a substitute for live testimony,” said the judge. “It would appear that the AOC’s direction on how to present to a grand jury may not have been observed here. I’m going to withhold on that until I see a certification.”
DeLury also pointed out “grand juries are invested with broad and unfettered investigative powers that are largely unrestrained by technical procedural evidentiary rules governing the conduct of criminal trials.”
“The courts are reluctant to intercede in what the grand jury has determined to be sufficient and appropriate. Therefore, indictments when they are returned should only be disturbed on the clearest and plainest grounds,” the judge added. 
In the follow-up submissions DeLury wants to be satisfied those who voted deliberated and voted based on testimony they actually heard. 
“Absent that, I think the indictment may be fatally flawed,” the judge said. 
Byron and Mikulski were also in court and made brief appearances. Their cases were also relisted for June 23.