A state appellate panel has reversed a lower court ruling that disqualified Attorney Anthony Fusco, Jr. from representing Newark Police Officer David Hudson
NEWARK -- A state appellate panel has reversed a lower court ruling that disqualified an attorney from representing a Newark police officer charged with brandishing a gun during an alleged road rage incident.
A Superior Court judge in January 2015 approved the state's motion to disqualify Anthony Fusco, Jr. as David Hudson's attorney, because he had previously represented another city police officer who was involved in the investigation into Hudson's case.
But in a decision released on Monday, the appeals court overturned that ruling after determining "the facts in this record do not support the judge's conclusions of an actual conflict of interest."
The panel ordered the judge to reevaluate the matter, thoroughly examine Fusco's prior representation and determine whether it created an actual conflict with his representation of Hudson.
In a phone interview on Wednesday, Fusco maintained that a conflict "just doesn't exist."
"There is no conflict," Fusco said. "There's nothing factually they can point to, nothing legally they can point to."
Attorney Anthony Fusco, Jr., pictured at a court hearing in January 2015, is representing Newark Police Officer David Hudson on charges stemming from an alleged road rage incident in March 2014. A state appellate panel on Monday reversed a lower court ruling that disqualified Fusco from representing Hudson. (Ed Murray | NJ Advance Media for NJ.com) Hudson, 45, of Irvington, was indicted in July 2014 on charges of official misconduct, aggravated assault by pointing a firearm, unlawful possession of a weapon and possession of a weapon for an unlawful purpose.
The charges are based on a March 8, 2014 incident in which Hudson allegedly got into a traffic dispute with a husband and wife while driving through Newark, authorities said. Hudson then allegedly pursued the couple, who were accompanied by their 11-year-old son, for several blocks and onto Interstate 280, authorities said.
The chase allegedly ended in the area of Broad Street and 3rd Avenue, when Hudson got out of his vehicle and pointed a handgun at the husband, authorities said.
Hudson - who remains suspended without pay - denies any wrongdoing, according to Fusco.
Fusco noted that police officers did not witness the alleged incident, and said "this comes down to a case of Officer Hudson and these other people, and it's going to come down to credibility."
"People today...they make accusations against cops," Fusco added. "They do it for a lot of different reasons."
As for Fusco's representation of Hudson, prosecutors argued he should be disqualified, in part because he is counsel for the union representing Newark police officers, according to the appellate decision. Since Hudson's charges were principally investigated by the city's police department, prosecutors said Fusco should be disqualified, the decision states.
The state also called for Fusco's disqualification as a result of his prior representation of Newark Police Lt. Camilo Mos in a disciplinary matter when he was a patrolman more than ten years ago, the decision states.
According to the decision, Mos was present during Hudson's "videotaped custodial interview, but neither conducted the interview nor Mirandized defendant."
The decision also notes that the state did not provide a certification from Mos that details the nature of Fusco's prior representation or Mos's position on Fusco's representation of Hudson. Fusco also has said he could not recall the nature of the prior representation, the decision states.
Superior Court Judge Michael L. Ravin did not find Fusco's role as an attorney for the union was a basis for disqualification, but he disqualified him due to his prior representation of Mos, the decision states.
"In concluding the facts showed an actual conflict of interest, the judge assumed Lt. Mos would testify at defendant's trial and Fusco's prior representation of Lt. Mos provided him access to private information, which could not be used or might impinge a vigorous cross-examination," according to the decision.
But the appellate panel rejected those findings.
The appellate judges said Mos's role in Hudson's case appears to be "merely tangential," and suggested it was unlikely he will be called as a witness at the trial.
The panel also pointed to the lack of information about Fusco's prior representation, saying "the absence of a certification from Lt. Mos speaks volumes."
"His silence along with Fusco's inability to recall the nature of the prior matter creates a void; no facts show an actual conflict exists based on Fusco's prior representation," the decision states.
"Conflicts must be actual and not merely appearance based," the decision states.
As for whether Fusco has confidential information about Mos, the appellate judges said "we cannot conclude, as the judge did, Fusco obtained confidential information by the mere fact he long ago represented Lt. Mos in a matter the facts of which no one recalls."
During the review ordered by the appellate panel, Ravin must evaluate the likelihood of Mos testifying at Hudson's trial and whether Fusco gained confidential information that could be used against Mos if he testified.
"The prior relationship may well have revealed no relevant information with the potential to undermine Lt. Mos' testimony," the decision states.
Bill Wichert may be reached at bwichert@njadvancemedia.com. Follow him on Twitter @BillWichertNJ. Find NJ.com on Facebook.
