Saturday, February 10, 2007

Henderson has several charges dropped
Suspended Bound Brook police chief's jury selection to begin late spring


By CHAD HEMENWAY
Staff Writer
BOUND BROOK -- Suspended borough police Chief Kenneth Henderson will not stand trial on four of the 17
original criminal charges in an indictment returned almost two years ago.

In addition, jury selection in the Henderson case will begin either May 21 or June 4.
"I'm looking forward to the trial," Henderson said Thursday after a hearing in Superior Court in Somerville to
address his motions to dismiss the charges. "It will be a good opportunity for the truth to come out."

Superior Court Judge Robert Reed said a jury "could not reasonably infer" Henderson likely committed the
crimes claimed in the indictment's counts 14 and 15 -- charges related to the suspended chief's reputed "double-
dipping."

The prosecution has charged that Henderson was paid by private contractors for work completed while on duty
as police chief.

However, despite Assistant Prosecutor Matthew Murphy's insistence that Henderson's standards were "inherent
in his official duty" as a chief, Reed said there is no municipal contract dictating Henderson's hours besides a
prosecutor's office interview with former police Chief Anthony Cimino, who indicated his hours were 9 a.m. to 5 p.
m.

"Where does it say there was an unauthorized exercise of his (Henderson's) official functions besides what Chief
Cimino said?" Reed asked Murphy while holding up the state Criminal Code.

In addition, Reed said the prosecution did not present sufficiently clear evidence for a grand jury to indict
Henderson on two counts he illegally received overtime payments from the Federal Emergency Management
Agency after Hurricane Floyd in 1999.

The prosecution claimed Henderson was not permitted to receive overtime, but Reed blamed the borough for
that oversight.

"Who signed the certification?" Reed asked. "How come he was paid if it wasn't permitted? They (Bound Brook)
said, 'What the heck? It's federal money. We'll give it to him.'"

Reed, a former defense attorney for more than 31 years, said "the bar is set at ground level" on the
prosecution's obligations during grand jury proceedings.

Therefore, Reed concluded, the prosecution did enough to uphold the rest of Henderson's indictable charges,
including claims that:

•  Henderson pocketed donations given by retired Judge Samuel Chiaravalli for coffee and doughnuts for police
officers
•  Henderson ordered on-duty officers to respond to his house to put up Christmas ornaments or give him an
estimate for tile work
•  Henderson failed to arrest drug users during an incident at the Blair House apartments
•  Henderson gave false testimony under oath
•  Henderson exhibited a pattern of official misconduct

Cafe Imperial owner Rafael Rosario, who is charged with not paying sales tax and official misconduct, had a
similar motion to dismiss the charges against him heard Thursday. Reed denied his motion in full, saying it
"lacked merit."

Rosario's jury selection and trial are set to begin April 23.

Henderson's charges stem from an Oct. 17, 2004, incident in which police say he tipped off Rosario to an
impending inspection by the state Division of Alcoholic Beverage Control.

As a result of the inspection and subsequent investigation, Rosario was charged with failure to surrender taxes,
filing false tax reports, official misconduct, conspiracy, tampering with public records and theft by deception.

Though he upheld charges related to the incident, Reed agreed with the defense's position that Henderson's
conversation with a state Alcoholic Beverage Control investigator before the inspection had no mention that the
inspection was confidential or that Henderson knew it was confidential.

After Henderson's attorney, David Fassett of Chatham-based Arseneault, Fassett and Mariano, said no rational
jury could deem the inspection confidential by reading the transcript of the taped telephone conversation, Reed
said, "I agree. Not beyond a reasonable doubt."

Fasset said after the hearing that it was too early to say if he would file additional motions on Henderson's
behalf.

Fassett added he recently submitted a motion to appeal an earlier ruling by Assignment Judge Yolanda Ciccone
not to dismiss the Somerset County prosecutor, Wayne J. Forrest, from the case and send it to the state
attorney general.