COURT HOUSE – A Superior Court judge said June 23 he would dismiss an indictment against Wildwood Mayor Pete Byron, former Mayor Ernie Troiano Jr., and current Commissioner Steve Mikulski.
The state accused the three men of unlawfully accepting health benefits that they did not qualify for because they allegedly did not work a full-time schedule in their elected positions.
During the hearing, held in Cape May County Superior Court, Presiding Judge Bernard E. DeLury Jr. said he found the state did not follow the proper procedure when presenting the case to a state grand jury before they returned the indictment, since testimony was presented over two days and not all jurors who voted to indict were present both days to hear all the testimony live.
Instead, the state provided transcripts of the missed testimony to the absent jurors. That was against the rules and did not give the jurors the ability to properly determine credibility, DeLury found.
DeLury said the indictment would be dismissed without prejudice, meaning the state could present the case again to a different grand jury following the proper procedure and obtain a new indictment against the three officials if the jurors find there is sufficient evidence to establish probable cause for the charges in the case.
DeLury said he would prepare an order and expound on his ruling in writing, though the Herald was unable to obtain the written opinion prior to the end of the business day June 23 and it is unclear if it had yet been filed.
Entry of the order would be stayed 45 days, allowing the state time to file an appeal if it so desires, DeLury said. A control date was set for the parties to return to court in August.
A state grand jury handed up a true bill – a decision to indict a criminal defendant by a grand jury – March 10, indicting each of the three men 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.
Oral argument was held on a motion to dismiss the indictment, which was originally brought by Troiano May 19. Mikulski and Byron later joined in the motion and all three were named in the same indictment and their cases were presented together.
Other arguments were made that DeLury said he did not find persuasive, like an argument that joinder – the joining together of several lawsuits or several parties all in one lawsuit – of the defendants in the grand jury presentation was not appropriate. The indictment failed on the issue of some jurors not hearing live testimony, the judge said.
“I don’t find any fault with presenting the three defendants together cause of the commonality of proofs, the commonality of witnesses and the commonality of theories of criminal liability,” DeLury said, noting that opinion didn’t necessarily mean the cases shouldn’t be severed prior to trial.
In court, Brian Uzdavinis, the deputy attorney general prosecuting the case, said he would need to confer with his office on whether the state would reindict the case or go the appellate route. An appeal may be necessary because the use of transcripts has been a long-standing practice in state grand jury presentments, he said in court.
A spokesperson for the New Jersey Office of the Attorney General issued the following statement via email June 24: “The State is in receipt of the Court’s decision in State of New Jersey v. Ernest Troiano, et al. The Court’s decision to dismiss the indictment was made without prejudice and based on what the Court viewed as a technical deficiency due to grand juror absences during a portion of the State’s presentation. The Court did not dismiss the indictment based on the merits of the State’s case against the defendants. While the State is currently reviewing the Court’s opinion and assessing litigation options, the State has every intention of prosecuting this case to the fullest extent of the law.”
On the issue of substituting transcripts for live testimony, DeLury’s ruling could impact the way the state presents future cases. Most cases are heard by county grand juries, but in certain instances, a prosecution is handled by the state attorney general, and a state grand jury decides if there is sufficient evidence to indict. This procedure is apparently notall that uncommon with state grand juries.
DeLury said he would take no offense if the state appeals.
“Certainly, I have no pride of authorship in anything that I’ve done and guidance by a higher tribunal of course would be welcome,” the judge said.
David Stefankiewicz, Mikulski’s lawyer, said he wasn’t sure what the state would do. He said he hoped they would reconsider the charges against his client but found that unlikely. He said an appeal would make some sense, given the circumstances.
“From their perspective, they probably want to know whether or not their presentations are vulnerable to a motion or whether or not it’s okay to do it the way they’re doing it,” he said in an interview after court.
While acknowledging that his client certainly isn’t out of the woods yet, Stefankiewicz said he hopes DeLury’s ruling gives the state time to reconsider the basis of the charges.
“I’m gratified that the judge threw out the indictment. If for no other reason than I always hope that organizations, attorneys, adversaries are reasonable,” Stefankiewicz said. “I would hope the state would hit pause and reevaluate its decision as to whether or not they want to continue the prosecution of Mikulski.”
Byron did not return a phone call from a reporter after court requesting an interview but responded with a text message: “We are pleased with the judge’s decision to dismiss the indictment and truly believe this case never should have been brought in the first place.”
Byron’s lawyer, Eric Shenkus, echoed that sentiment.
“I certainly hope they take another look at it. The case should never have been indicted to start with,” he told the Herald.
Troiano could not be reached by the Herald prior to publication.
To reach the reporter, Shay Roddy, email sroddy@cmcherald.com or call 609-886-8600, ext. 142.
