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Retired Superior Court Judge Richard Muscatello, arrested last Tuesday during a police raid of a massage parlor, is unlikely to have his judicial pension docked, even if he is convicted of soliciting a prostitute. One of four people arrested at the Horizon Caf� Center in North Plainfield, N.J., the 79-year-old Muscatello was released pending a Feb. 22 hearing in North Plainfield Municipal Court. A 20-year veteran of the bench in Union, Middlesex and Somerset counties, N.J., Muscatello receives a pension of $78,395. Under some circumstances, state pensioners may have benefits taken away due to misconduct under N.J.S.A. 43:1-3, but the statute contains no reference to misconduct committed after retirement, and in no reported cases have benefits been taken away over post-retirement conduct. Because the judge retired more than 12 years ago and the conduct in question is unrelated to his job, Muscatello is unlikely to lose benefits, according to some pension law practitioners. “I would be very surprised if they reduce his pension,” says Samuel Halpern, a West Orange sole practitioner who represents public and private employees in pension disputes. Further bolstering Muscatello’s prospects of a secure retirement is the experience of former Superior Court Judge Michael Imbriani. Imbriani, a former Somerset County judge who pleaded guilty to failing to make required dispositions to his partners in a real estate venture, kept his full judicial pension by a 3-2 vote of the State House Commission in 1998. The decision was based on an 11-point balancing test for misconduct during public service established by the state supreme court in Uricoli v. Police and Firemen’s Retirement System, 91 N.J. 62 (1982), and codified at N.J.S.A. 43:1-3. Factors to be considered include length of service, nature and gravity of offense, and relationship of misconduct and public duties. Also among the test points is “the quality of moral turpitude or the degree of guilt or culpability,” and the “nature of the misconduct or crime, including the gravity or substantiality of the offense, whether it was a single or multiple offense and whether it was continuing or isolated.” The test permits the state to order forfeiture of benefits for “misconduct occurring during the member’s public service. No reference is made to post-retirement conduct. Given the Imbriani decision, chances that Muscatello’s pension would be cut are “zero to none, a very, very slim possibility,” says Robert Norton, a Westfield sole practitioner and criminal defense attorney who represents police officers in criminal and civil matters. Reached at his home Thursday night, Muscatello said he had retained counsel, whom he would not identify, and declined to comment on the matter except to say that he only faces a disorderly persons charge. Somerset County Prosecutor Wayne Forrest says an undercover detective posed as a Horizon Caf� Center customer and gave $40 to the manager, Giovanna Sellitti. While being led to an upstairs room, the detective overheard sexual activity in one room, Forrest says. When police officers raided the building a short time later, Muscatello was found in that room with a woman, Elena Nikiforova, 33, of Brooklyn, N.Y. Sellitti, 38, of Elmwood, was charged with promoting prostitution. Nikiforova and Christina Wang, 30, of Brooklyn, were charged with prostitution. Wang was released on $250 bail and Sellitti and Nikiforova were released on their own recognizance. In the past 19 years, the State House Commission, which oversees the judicial pension system, has twice taken away judicial benefits for misconduct in office. The first case was that of former Camden County Superior Court Judge Peter Coruzzi, convicted in 1982 of accepting bribes from an attorney in exchange for a lenient sentence for the attorney’s clients. The second case involved former Monmouth County Superior Court Judge Thomas Yaccarino, whose pension was reduced by 7.5 percent after his removal from the bench in 1985. Yaccarino was not convicted of a crime but was found to have used his judicial influence to dispose of a minor criminal charge against his daughter and to have concealed his ownership and management of two bars. The state Division of Pension and Benefits will make a determination whether to initiate a review of Muscatello’s case once the soliciting prostitution charge has been adjudicated, says Treasury Department spokesman Francis Rapa. He says the chief criterion for revoking pensions in such cases is the connection between the person’s job and the wrongdoing. Consequently, retired people are less likely to lose a pension than those still on the job, Rapa says.

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