CAPE MAY COURT HOUSE - Deputy Mayor Charles Cain said he will not end his legal battle to prove he was targeted by township police officers that led to his arrest in January 2011, - despite another defeat in court Tuesday.
Cape May Superior Court Judge John Rauh denied an appeal by Cain on his drunken driving case Tuesday - rejecting the defense's claim that the arrest should be thrown out because Cain was targeted by township police officers.
Cain was arrested on Jan. 22, 2011, on Clarkstown Road in Hamilton Township and pleaded guilty to drunken driving and refusing to take a breathalyzer in February. He made the decision to plead after North Wildwood Municipal Court Judge Louis Belasco refused to throw out testimony from the two officers that pulled him over and arrested him.
His attorney, Louis Barbone said the next motion would go to the state Appellate Division.
"I'm not letting it go," Cain said. "It’s obvious what they did. I've accepted responsibility for my actions. I will not stop until they accept responsibility for theirs."
Barbone claims the police targeted Cain because the Township Committee was considering laying off officers. Rauh ruled Peter Burns - the officer who pulled Cain over - provided credible testimony during the trial that took place in North Wildwood Municipal Court last year.
He said there was evidence to support a valid reason to conduct the traffic stop. Burns testified that he had pulled over on the side of the road when Cain drove by at a high rate of speed and nearly swerved into his police vehicle.
"It's all about Burns at the end of the day," Rauh said. "His testimony as I reviewed it, and Belasco reviewed it, it makes sense. It makes at least as much sense as any other theory."
Barbone presented evidence for more than half an hour that he claimed "eviscerated" the story of Burns -- now a detective with the Atlantic County Prosecutor's Office -- and Sgt. Christopher Ghering. The two spoke on their cell phones before the arrest and Ghering had looked up Cain's license plate at Testa's Good Guys Pub on Somers Point-Mays Landing Road where a witness said Cain had two vodka Red Bulls before his arrest.
Burns, who was on DWI patrol at the time of the incident, declined to follow another car he believed had a driver who was under the influence, Barbone said. The officers also turned off their microphones when talking at the scene of the arrest.
The officers testified during the trial they had a personal conversation on their phones and Gehring ran Cain's plates because the car had dealer tags and he thought the vehicle may have been stolen. Cain owns the Auto Plaza at English Creek in Egg Harbor Township.
Burns said he had technical difficulties with his microphone, and that it was not the department's policy to use the microphones when talking to the suspect.
During Tuesday’s proceeding Atlantic County Assistant Prosecutor James Smith told the judge the prosecution presented evidence it was a viable stop during trial and the appeal should be denied.
"The state proved what needed to be proved," he said. "There was a suspicion (Cain) created a motor vehicle offense."
Smith declined to comment after Rauh’s ruling.
Rauh also questioned Burns' motivation to take part in an alleged conspiracy. The Township Committee announced plans to lay off 11 officers at a meeting a few days before the arrest. Burns was the 12th person who would be laid off and did lose his job when the committee ultimately laid off 13 officers last year.
"He had a bad motive," Rauh told Barbone. "If you know you're number 12 on the list and it's at 11 don't you say 'Mr. Cain, Merry Christmas from your friendly FOP (Fraternal Order of Police - a police union), and I'll follow you home and remember this when layoffs come?'"
Barbone said he didn't know what the motivation was for the plot but the fact so many “suspicious” occurrences happened signaled there was a plot against his client. He added the officers "hovering like vultures around Testa's."
Cain's license was suspended for 10 months and he was ordered to pay $562 in fines for driving while intoxicated and refusing to submit to a breathalyzer test. Rauh declined to change the sentence.
Cain began serving his sentence after he pled. Once he regains his license he must have an ignition interlock device installed on any vehicle he may drive for the next six months. The breath-test device is typically installed on a car's dashboard and requires the driver to exhale into it before a car will start.
Barbone had also filed an appeal on the interlock punishment, stating he did not advise Cain that would be a consequence of his guilty plea for failing to take a breathalyzer. Rauh also declined that appeal.
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