A former Ocean City beach tag supervisor is headed to trial this fall after a judge declined to dismiss official misconduct and child endangering charges against him.
The former supervisor, 52-year-old Charles E. Cusack, is accused of having an ongoing sexual relationship with an underage female employee. He faces a mandatory minimum of five years in state prison if convicted of official misconduct.
Cusack appeared in state Superior Court in Cape May Court House on Tuesday afternoon, accompanied by his attorney, Louis M. Barbone of Atlantic City. Cusack, wearing a gray suit, did not speak during the hearing.
He was charged in August 2012 with one count of second-degree sexual assault. A retired Ocean City police officer who was later hired to run the city’s beach fee operations, Cusack allegedly had an ongoing sexual relationship with a female beach-tag inspector, who was then 17. 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.
Barbone filed a motion arguing the official misconduct and endangering charges against Cusack should be dismissed. The superseding indictment was based upon “prosecutorial vindictiveness” because Cusack wouldn’t plead guilty and instead opted to go to trial, Barbone contended.
Assistant Cape May County Prosecutor Dara Paley countered in her reply brief that she presented the additional charges against Cusack to a grand jury only after it became clear the case couldn’t be resolved through a plea agreement. Cusack would not agree to plead guilty to a charge that would spare him prison time, but require him to register as a sex offender under Megan’s Law, Paley said.
During Tuesday’s hearing, Judge John C. Porto said prosecutors have wide discretion in bringing additional charges during the pretrial phase of a case, as long as those charges are in line with the evidence.
“To this court it appears it was prosecutorial oversight that caused the state to initially indict the defendant with only one count of sexual assault under the prior indictment,” Porto said in issuing his ruling from the bench.
The presentment of additional charges against Cusack to a grand jury was justified, Porto ruled.
“The absence of all the potential charges in the initial indictment due to the prosecutor’s oversight constituted an unjustifiable windfall to the defendant at the expense of the public interest, the victim’s rights and the integrity of the criminal justice system. Therefore, to say the initial indictment and the state’s offer were very favorable to the defendant given the absence of the official misconduct and endangering the welfare charge is an understatement,” he said.
Porto set a trial date of Nov. 2. Cusack is scheduled to appear in court again on July 30 for a pretrial conference.
Cusack also faces a civil lawsuit filed in March by his alleged victim. The lawsuit alleges Cusack helped the girl land a plum summer job with the city’s beach fee office, and then used his position of authority to sway her into a sexual relationship. The city of Ocean City is also named as a defendant in the civil suit.
Cusack had sex with the girl both in his city office and at his home in Egg Harbor Township on various occasions, according to the civil and criminal complaints.
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 has three daughters and had been separated from his wife at the time of his arrest.
Cusack was in his second season as director of the city’s beach-tag program when he was arrested. He has been free since posting $150,000 bond shortly after his arrest.
He and Barbone left the courtroom without comment following Tuesday’s hearing.