MAYS LANDING — The state can use Atlantic City Councilman Marty Small's grand jury testimony as evidence in his voter-fraud trial, a judge ruled Wednesday.

Small and five others are preparing to go to trial in the case that included indictments of 14 people accused of mishandling messenger ballots in Small's failed bid during the 2009 mayoral Democratic primary. Two men have pleaded guilty. The remaining six are set to go to trial next year.

Defense attorney Stephen Funk argued the testimony should be suppressed because Small was told he was not a target of the investigation before he agreed to testify in front of the grand jury Aug. 6, 2009. But transcripts from the lead investigator's tapes show Small being called a target.

The state successfully argued that an investigator does not have the power to categorize someone as a target, and that the use of the word early on did not mean that's how Small was viewed by the state.

"I do find it was a general investigation at which time everyone involved with the Small campaign was a person of interest," Superior Court Judge Raymond Batten said.

But that does not rise to the level of target, and therefore did not require a warning from the deputy attorney general, he ruled.

According to the state's arguments, it was Ronald Harris — who appeared before the grand jury after Small — who implicated the councilman. That grand jury ended up indicting both Harris and Small, along with 12 others. Harris has since pleaded guilty and is expected to testify on behalf of the state.

If Small's motion had been granted, Funk was expected to then move for dimissal of a 10th charge against Small that claims he hindered prosecution by lying to law enforcement.

It is not clear when the trial will begin. This week has been dedicated to trimming the jury pool and Batten ruling on various motions. Jury selection is expected to take about two weeks.

Estimates have the trial lasting eight to 12 weeks. It would be the first of two trials, with the other six defendants scheduled next year. But that could change.

While Batten denied a new motion to have the 12 tried together due to logistical problems, he told the defense attorneys Wednesday that if they can find a place big enough to handle all the defendants and their attorneys, he would revisit the issue.

Batten also grew angry when he discovered that someone on the witness list, Gwen Callaway Lewis, had been sitting in the courtroom despite an order made Wednesday morning to sequester all 760 people listed as potential witnesses. Lewis — the sister of defendant Toni Dixon as well as former Atlantic City political power broker Craig Callaway — told the judge the deputy attorneys general in the case knew who she was. Batten said that it was the state that brought the matter to his attention.

All 12 defense attorneys are due this morning in Batten's courtroom to argue against the state's motion to unseal the 316 ballots the Board of Elections rejected during the 2009 primary. The deputy attorneys general representing the state have said the ballots' contents — which would show how the votes were cast — could help their case if it is shown that the majority of them went to Small.

Contact Lynda Cohen:

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