By Steve Plunkett
A panel of three judges at the 4th District Court of Appeal peppered the lawyers on both sides of Richard Lucibella’s simple battery case with questions during oral arguments.
Neither Leonard Feuer, representing the Ocean Ridge resident and onetime town vice mayor, nor Senior Assistant Attorney General Melynda Melear, representing the state, escaped scrutiny.
Lucibella, 66, wants the appeals judges to vacate his February 2019 conviction of misdemeanor battery and tell Circuit Judge Daliah Weiss to enter instead a judgment of acquittal or give him a new trial.
Lucibella was found not guilty of resisting arrest with violence and felony battery on a law enforcement officer but guilty of misdemeanor battery, a lesser charge. He was ordered to pay $675 in court costs.
The charges stemmed from an Oct. 22, 2016, altercation in the then-vice mayor’s backyard as town police investigated phoned-in reports of gunfire. During the confrontation Lucibella poked Officer Richard Ermeri through his chest vest.
Part of Feuer’s argument at the Feb. 25 hearing rested on whether Lucibella had a right to defend himself after Ermeri, Officer Nubia Plesnik and Sgt. William Hallahan showed up.
“I’m not seeing this show of force” by the police, Judge Alan Forst said. “Clearly they weren’t invited in, but they didn’t come in with guns blazing.”
Feuer said the officers were “trying to control the scene” and kept “emphasizing their authority. You know, ‘Sit down, sit down, you can’t go inside the house,’” he said.
Presiding Judge Burton Conner was concerned that state law does not allow someone to resist a law enforcement officer who is engaged in the execution of a legal duty “if the law enforcement officer was acting in good faith.”
“Do you agree that the case law interpreting that statute basically says that you cannot use force against an officer if the officer is acting in good faith?” Burton asked. “The Legislature is basically saying to me … you can’t raise a self-defense argument to justify pushing an officer, poking an officer.”
Associate Judge Kenneth Gillespie zeroed in on whether the police were in the backyard “for a lawful purpose.”
“I agree they were trying to investigate shots fired,” Feuer said.
When Melear’s turn came, she emphasized that the record of Lucibella’s trial is “replete with evidence of good faith” by the officers.
But the three-judge panel wanted to know if or when the “exigency” or emergency conditions ended that might allow police to enter a yard without a warrant.
Conner said Ermeri didn’t pat down Lucibella or his companion, police Lt. Steven Wohlfiel, and handed back Lucibella’s gun when he could not unload it.
“That doesn’t quite strike me as demonstrating exigency,” Conner said.
Melear argued that whether Ermeri’s actions were proper was a moot point.
“For simple battery, lawful execution of legal duty is not an element of the crime. For simple battery you simply have an unlawful touching,” she said.
Melear also said Lucibella “walked into” Ermeri’s extended arms before he was arrested.
“It was the defendant who provoked the aggression in the first place,” she said.
The 4th District Court of Appeal issues its opinions on Wednesdays. The panel of judges should render a decision within six months, the court’s website says.