By Tim Zatzariny Jr.
For OCNJ Daily
The criminal charges against a former Ocean City beach-tag supervisor came about after he was caught having sex in his city office with an underage female beach-fee collector, according to 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 an ongoing sexual relationship with the girl, 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.
Cusack was director of Ocean City’s Beach Fee Collection Office in the summer of 2012, when his sexual relationship with the girl allegedly began. At one point, another beach-fee employee walked in on Cusack having sex in his office with the alleged victim, according to the court filing. The legal filing by the Cape May County Prosecutor’s Office does not mention the exact date of the alleged incident, nor does it identify the employee by name.
The employee reported the incident to his direct supervisor, who in turn contacted Ocean City police. The alleged victim later told authorities that she and Cusack engaged in various sex acts in Ocean City and at his home in Egg Harbor Township from July 14 to Aug. 4, 2012, according to the filing.
The revelations regarding Cusack’s alleged relationship with the girl are contained in a legal brief filed this week by Assistant Cape May County Prosecutor Dara Paley. Paley’s brief is in response to a motion filed last month by Cusack’s attorney, Louis M. Barbone of Atlantic City. Barbone’s motion seeks to have the official misconduct and endangering charges against Cusack dismissed. Barbone argues 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.
The stakes are high for Cusack — if he’s convicted of official misconduct, he faces a mandatory minimum of five years in state prison.
A hearing on Barbone’s motion is scheduled for May 5 before Judge John C. Porto in Cape May Court House.
Barbone did not immediately respond to a message left at his office Thursday afternoon.
In her brief, Paley argues that her office did not act vindictively in seeking a new indictment against Cusack, but that the additional charges came about simply through further review of the facts in the case.
“The initial charge I filed did not reflect the extent to which (Cusack) was legitimately subject to prosecution,” Paley writes.
Barbone argues in his motion that the superseding indictment came after the court-ordered plea cutoff date of Jan. 26, 2015. But Paley counters in her brief that because Cusack and his attorney did not attend a scheduled status conference before Porto on that date, the plea cutoff was extended to the next scheduled court date, Feb. 12. The grand jury returned the new indictment on Feb. 10.
Barbone’s motion also references a Feb. 9 letter to him from Paley, in which the prosecutor 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.”
Barbone contends this paragraph is evidence of the prosecutor’s office intent to punish Cusack for refusing to accept a plea offer.
But Paley counters in her brief that with those words, she was simply expressing her disappointment that a trial seemed unavoidable.
“Every single sexual assault case I have prosecuted since my first in 2001 … I have prayed that each would resolve without a trial to spare the victim from the trauma of testifying,” Paley writes in her reply brief. “The trauma of having to tell complete strangers about details of sexual conduct with a 49-year-old man when she was 17 years old. The trauma of having to take the stand in front of at least 12 adults, a judge, lawyers asking her questions and having to describe under intense pressure intimate details of sexual acts.”
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.