By Steve Plunkett
If Ocean Ridge resident Richard Lucibella believed police were in his backyard illegally when he was arrested in 2016, he should have argued that before his trial began this year and he was convicted of misdemeanor battery, the state Attorney General’s Office says.
But Lucibella, at the time Ocean Ridge’s vice mayor, “did not move to suppress the evidence based on a warrantless entry and search. He did not move pretrial to dismiss the charges based on a warrantless entry,” Senior Assistant Attorney General Melynda Melear writes in her answer to Lucibella’s appeal.
Melear asks that the 4th District Court of Appeal in West Palm Beach affirm Lucibella’s Feb. 21 conviction. Lucibella wants the appellate judges to vacate his conviction and order Circuit Judge Daliah Weiss to enter a judgment of acquittal or give him a new trial.
The case began Oct. 22, 2016, when neighbors called 911 to report hearing gunfire. Ocean Ridge police Officers Richard Ermeri and Nubia Plesnik and Sgt. William Hallahan responded to Lucibella’s backyard; a scuffle ensued.
Lucibella, now 66, was found not guilty of resisting arrest with violence and not guilty of felony battery on a law enforcement officer, but guilty of simple battery. He was ordered to pay $675 in court costs.
In her Oct. 16 brief, Melear says Lucibella’s contentions that police were not properly on his property, that there was no probable cause to arrest him and that the officers were trespassing are moot issues.
“Each one of these arguments bears on the element of the battery on a law enforcement officer charge that the officer was engaged in the lawful performance of a legal duty,” she writes. The charge of simple battery “does not contain this element but only requires a showing of an intentional unwanted touching.”
Melear’s view of the facts presented at the trial differs sharply from that of Leonard Feuer, Lucibella’s appellate attorney. Feuer, for example, said in his initial brief that “It was undisputed by Ermeri he caused the first instance of violence in this case by grabbing Lucibella’s shoulders to obstruct his entry into his home or prevent him from obtaining a drink.”
Melear’s version: “The evidence not only showed that [Lucibella] poked the officer forcefully in the chest while threatening him, but also showed that he first walked aggressively into the officer’s extended hands and grabbed him by the neck.”
Lucibella’s case may linger into 2021. Feuer’s initial brief and Melear’s answer are the first salvos in the court battle. Generally, it takes two to three months after the last document is filed to get on the District Court of Appeal’s calendar, its website says. A three-judge panel renders its decision in most cases within six months, the website advises.