An Ocean County Superior Court judge will rule within 60 days on whether an indictment of suspended Brick schools superintendent Walter Uszenski should be thrown out after his attorneys argued the Ocean County Prosecutor’s Office did not include exculpatory evidence in its grand jury presentation.
Uszenski is charged with allowing his grandson to attend an out-of-district preschool he was not entitled to attend, but defense attorney Joseph J. Benedict said during a hearing Tuesday that the child had already attended the school in the past, and that it was among a number of schools recommended for him by the state before his grandfather was ever hired in Brick. The child was returned to the out-of-district school, Ocean Early Childhood Center, after he experienced problems adjusting to a self-contained program within the district, he said.
Benedict argued before Superior Court Judge Patricia Roe that the prosecutor’s office should have included those facts in its presentation to a grand jury since it is exculpatory evidence which has the potential to exonerate Uszenski. After the defense filed a motion to dismiss the original Sept. 2015 indictment, the state declined to file a response, instead choosing to present the case to a second grand jury. According to legal briefs filed by the defense and obtained by Shorebeat, the prosecution presented “some, but not all” of the defense’s evidence and the jury was “exposed to personal opinion evidence.”
“The child had been recognized to have a disability by the time he was 18 months old, and was accepted into the state early intervention program,” Benedict said. “There was a note recommending that he be placed in a private day school in order to deal with behaviors through socialization, which was something he needed.”
Before his grandfather was ever hired in Brick, Benedict said, a psychologist and staff at Children’s Special Hospital recommended Ocean Early Childhood Center as a good option. He attended the school, on Princeton Avenue in Brick, but was then transferred back to a self-contained program within the district, court documents show.
“Our position is that, at the end of that school year, the family decided it was not working for the child,” said Benedict, adding that the in-house program in Brick only lasted two hours per day and four days each week. “They wanted him back in Ocean Early Childhood Center.”
By the time that decision was made, Uszenski had been hired in Brick, his hometown.
Another focus of the defense’s case zeroes in on the hiring of Andrew Morgan as the district’s new director of special services. Morgan, who is facing charges for allegedly not disclosing a previous drug conviction for which he was granted amnesty in the 1990s, replaced another district employee, Donna Stump, after Morgan was hired as a contractor to conduct an audit of the special education department of the school district. The audit found alleged improprieties in the department, sources have said, including an approximately $700,000 budget shortfall, leading Uszenski to recommend new leadership.
“It is alleged that the audit was a pretense to position Morgan as the director of the special services section,” Al Della Fave, spokesman for the prosecutor’s office, previously said. The prosecution further argued that Morgan was hired as part of the alleged effort to move the superintendent’s grandchild back to a special school.
“They had this theory of what happened, but as I said to the judge, they came up with this theory before ever talking to anybody,” Benedict said after the hearing. “If they would have simply talked to the mother, they would have understood what happened here.”
Another aspect of the case was revealed in court Tuesday. As part of the prosecution’s grand jury presentation, it was stated that the case originated by way of the Brick mayor’s office, allegedly after a school bus driver brought up the fact that he or she was transporting the child to a private school.
Reached by phone Tuesday night, Mayor John Ducey said he has cooperated with the prosecutor’s office. Ducey said he did not know if his conversation with the prosecutor’s office was what initiated the case. When asked about the conversation with the bus driver, Ducey said, “that is closer to what happened” but said the person’s complaints were not necessarily about Uszenski.
“I cooperated with any questions they had as far as things they were looking for,” said Ducey.
Roe has 60 days to decide on a motion to dismiss the indictment, or whether the case should be moved out of Ocean County due to what the defense termed “prosecutorial misconduct” in reference to the grand jury presentation. Roe will deliver her decision by way of a written document.