CAPE MAY COURT HOUSE —- A judge will decide in January if an indictment charging former Wildwood Mayor Gary DeMarzo with official misconduct should be dismissed.
DeMarzo, a former city police officer who lost his position as mayor in the city's May 2011 elections, is charged with using city funds to pay for personal legal work completed by attorney Samuel Lashman in 2009.
During a hearing Monday, defense attorney Louis Barbone argued that the three-member City Commission authorized the addition of $20,000 into the Revenue and Finance Department budget, which DeMarzo headed in 2009.
"They knew exactly what he was going to use the money for," Barbone told Superior Court Judge Albert Garofolo.
Lashman served as a confidential aide for DeMarzo and completed legal work related to a lawsuit he filed against Mayor Ernie Troiano Jr., Commissioner Bill Davenport, attorney Marcus Karavan and the city, the indictment states.
The total expense was $346.
"The money we're talking about is money lawfully allocated," Barbone said.
First Assistant Prosecutor Rob Johnson, however, said the $20,000 entitled DeMarzo to a personal aide and not an attorney to represent him in personal matters.
Johnson said DeMarzo also violated a court order when he paid Lashman.
Superior Court Judge Valerie Armstrong had ruled prior to the March 2010 payment that DeMarzo had to pay for legal counsel himself and she would not order the city to pay for those legal expenses, he said.
Prosecutor Robert Taylor also argued before Garofolo on Monday that Armstrong's ruling prevented DeMarzo from paying Lashman for those services.
Taylor told Garofolo that under the Walsh Act, which governs Wildwood's form of government, all three commissioners fix the salaries of the city’s employees and they never passed any measure setting Lashman's salary.
Taylor added that Armstrong's ruling was still in effect when DeMarzo decided to pay Lashman.
In addition to second-degree and third-degree official misconduct, DeMarzo is charged with the fourth-degree crimes of criminal contempt (for disobeying a court order) and corruption of public resources.
Garofolo said he will decide in mid-January whether or not to dismiss the indictment, but on Monday he did rule on the state's request that he recuse himself from the case.
In April, Garofolo dismissed an initial indictment against DeMarzo, citing what he deemed a "fundamentally unfair" grand jury presentation in which some evidence was never presented to the grand jury.
At the time, Taylor said Garofolo's ruling was "not legally correct" and on Monday Taylor argued that Garofolo should leave the case to another judge.
"You apparently prejudged the state's case," Taylor told the judge.
Taylor said Garofolo repeatedly interrupted the prosecution in a March hearing, allowed the defense to use unsworn statements and facts outside the court record, made statements about the credibility of Wildwood Solicitor Marcus Karavan, one of the state’s witnesses, and ignored Armstrong's ruling.
Taylor also said Barbone was allowed to file motions despite missing deadlines the court had scheduled.
The argument led to many heated exchanges between Taylor and Garofolo.
"Somebody needs to grow a thick skin in this courtroom and it's not me," Garofolo said. He continued, "I don't engage in superfluous conduct. I just want to get things done."
Taylor said his office didn't appeal the previous dismissal, but instead wanted to get the case to trial and that the facts of the case should be considered by a jury.
Taylor said the issue at the heart of the case was about authorization.
"Was Mr. DeMarzo authorized to spend city money for his personal lawyer for his personal defense," Taylor asked.
Taylor then asked the judge to remove himself from the case.
"Please recuse yourself because you've ruled in a fashion that's unfair to the state," Taylor said.
Garofolo repeatedly asked, "Where's the bias,” noting his lack of familiarity with DeMarzo or Cape May County politics, and called Taylor's claim of bias frivolous.
"I am impartial. I can continue to be impartial," Garofolo said as he refused to recuse himself.
DeMarzo has previously said that he believed the criminal case was an attempt by Taylor to silence DeMarzo regarding an alleged excessive-force case involving Wildwood police Capt. Robert Regalbuto.
While he was mayor, DeMarzo attempted to obtain a videotape of the interaction between Regalbuto and a suspect that was filmed in Wildwood, but a court ruling found the tape should not be turned over to him.
The taped incident did not result in any criminal charges or disciplinary action against then-Sgt. Regalbuto.
The first indictment also played a role in the city's May 2011 elections in which DeMarzo opponents ran ads that borrowed from the popular "Got Milk?" ad campaign. "Got indicted?? Your Mayor Did," read an advertisement placed by a group called Support Our Police.
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