By Tim Zatzariny Jr.
For OCNJ Daily
The Cape May County Prosecutor’s Office exacted retribution against a former Ocean City beach-tag supervisor accused of sexual assault by seeking an additional indictment against him after he refused to accept a plea deal, his defense attorney contends in a court filing.
The former supervisor, Charles E. Cusack, 51, was charged in August 2012 with one count of second-degree sexual assault. Cusack, a retired Ocean City police officer, allegedly had a two-month sexual relationship with an underage female beach-fee collector.
In February 2015, a Cape May County grand jury handed up a superseding indictment adding a second-degree charge of official misconduct and a second-degree count of endangering the welfare of a child against Cusack.
The new indictment raises the stakes for Cusack, because if he’s convicted of official misconduct, he faces a mandatory minimum of five years in state prison.
Cusack’s attorney, Louis M. Barbone of Atlantic City, filed a motion last month in state Superior Court seeking to have the new charges dismissed. A hearing on the motion is scheduled for May 5 before Judge John C. Porto in Cape May Court House.
Barbone contends in his motion that the superseding indictment is based upon “prosecutorial vindictiveness” because Cusack wouldn’t plead guilty and instead opted to go to trial.
Barbone references a letter to him dated Feb. 9, 2015 from Assistant Cape May County Prosecutor Dara Paley.
In the letter, Paley writes, “please be advised I have decided to present an official misconduct count to Mr. Cusack’s indictment. I do so with a heavy heart as I was hoping your client would change his mind and accept the non-custodial resolution the State proposed.”
Paley’s letter references a proposed deal discussed before the superseding indictment, under which Cusack would have pleaded guilty to endangering the welfare of a child, in exchange for no prison time. Prosecutors would have recommended a sentence of parole supervision for life, with a requirement that Cusack register as a sex offender under Megan’s Law.
The court-ordered plea cutoff date was Jan. 26, 2015.
“Two weeks thereafter, the Prosecutor admits in writing that the only basis for securing additional and double exposure penalties against Cusack was because of his demand for jury trial,” a violation of Cusack’s constitutional right to due process, Barbone writes in his motion.
Plea negotiations began soon after Cusack was arraigned on the sexual assault charge in May 2013, according to Barbone’s motion.
“The State had one year and seven months (from the time Cusack was arraigned) to bring superseded counts if it thought that was in the interest of justice,” Barbone writes. “It did nothing, and acted only in violation of Court Rules for an illegitimate purpose of punishing this defendant for his demand of jury trial. The court simply cannot countenance such a brazen disregard for the law.”
Paley on Tuesday declined to comment on Barbone’s motion, but said her office is preparing a reply.
Cusack had sex with the alleged victim multiple times, in Ocean City and Egg Harbor Township, according the indictments. The girl was 17 at the time, authorities said.
In New Jersey, the age of consent is 16. But Cusack was charged under a provision in state statute that makes it illegal for a person to have sex with someone over whom he or she has supervisory authority when an alleged victim is 16 or 17 years old.
Cusack served 25 years in the Ocean City Police Department before retiring in May 2011.
He was in his second season as director of the city’s beach-tag program when he was arrested.
