By Steve Plunkett
Former Vice Mayor Richard Lucibella wants the 4th District Court of Appeal to vacate his February conviction of misdemeanor battery and tell the judge who sentenced him to enter instead a judgment of acquittal or give him a new trial.
Lucibella, 66, was found not guilty of resisting arrest with violence but guilty of misdemeanor battery, a lesser charge, instead of felony battery on a law enforcement officer. He was ordered to pay $675 in court costs on Feb. 21.
The charges stemmed from an Oct. 22, 2016, altercation in Lucibella’s backyard as Ocean Ridge police investigated phoned-in reports of gunfire. Officers Richard Ermeri and Nubia Plesnik and Sgt. William Hallahan responded.
In an initial brief filed Sept. 16, Lucibella’s appeals attorney, Leonard Feuer of West Palm Beach, states that Circuit Judge Daliah Weiss erred by not issuing a judgment of acquittal and by denying motions for a mistrial, largely repeating points that Lucibella’s defense team made at the trial.
“The motion for JOA argued the officers, who were investigating a misdemeanor, were trespassing on Lucibella’s property when they entered his enclosed backyard. Thus, the officers could not be engaged in a lawful execution of duty,” Feuer wrote. “Further, the alleged ‘resistance’ amounted to Lucibella stiffening his arm.”
Feuer also complains about prosecutor Danielle Grundt’s asking Ermeri whether Lucibella ever gave a response or explanation for why he had a firearm or why shells were present, to which Ermeri responded no.
“The question and answer amounted to an impermissible comment on Lucibella’s right to prearrest silence and shifted the burden of proof to Lucibella. The remarks directly addressed Lucibella’s right to possess a firearm, which the question itself cast in a negative light, as if Lucibella needed to explain his possession of a firearm at his own house,” Feuer wrote.
Coming next in the appeal case will be a response to Feuer’s brief by Senior Assistant Attorney General Georgina Jimenez-Orosa.
Between the arrest and Lucibella’s trial, Ermeri was promoted to sergeant and Hallahan retired.
Plesnik has filed a civil lawsuit accusing Lucibella of battery and negligence. She testified at his criminal trial that she missed reporting for police duty for several months because of shoulder problems caused by his actions.