A disbarred municipal attorney convicted of pushing through building approvals in exchange for real estate discounts and other perks was handed a mostly noncustodial sentence Thursday, along with restitution and a fine.
John Montefusco Sr., a former Parsippany-Troy Hills planning board attorney, was sentenced to one day behind bars, two years’ supervised release, including six months of electronic monitoring, and a $2,500 fine.
U.S. District Judge Freda Wolfson also ordered Montefusco to pay a sum of restitution, to be determined later.
Montefusco admitted that, between 2001 and 2006, he speeded up a developer’s building applications and helped settle affordable-housing litigation between the township and companies the developer owned. The settlement terms allegedly were more favorable to the developer than the township.
The developer wasn’t named in charging documents but later was identified as Edward Mosberg. Prosecutors filed charges against Mosberg but ultimately dismissed them.
Aside from expediting approvals, Montefusco’s interference also allowed affiliated real estate companies to save money on property taxes, litigation expenses and other costs, according to prosecutors.
In return, Montefusco’s family members allegedly received discounts on newly constructed townhouses, as well as thousands of dollars worth of free upgrades and extras on the properties, which they were allowed to purchase with little or no deposit and no mortgage contingency.
Montefusco’s relatives allegedly sold the properties soon after at a considerable profit.
Montefusco’s son — John Montefusco Jr., 46, who netted more than $97,000 by selling two Morris Plains properties, according to prosecutors — pleaded guilty in October 2008 to filing false tax returns in which he failed to report about $159,000 in capital gains earned in the property sales and from other sources.
Montefusco, for his part, received $26,000 of the proceeds after they were transferred through various bank accounts, and failed to report the income, he admitted. He allegedly used the proceeds to pay credit card and retail debts accumulated by family members.
Montefusco pleaded guilty on Feb. 13, 2008, to one count of honest services fraud. His sentencing was postponed repeatedly for various reasons, including pendency of the related case against Mosberg, which continued until last year, and a 2010 U.S. Supreme Court ruling, Skilling v. U.S., 130 S. Ct. 2896, which changed how prosecutors can handle charges of honest services fraud.
Montefusco was removed from the planning board after 18 years, temporarily suspended by the state Supreme Court and disbarred by consent on June 4, 2009.
Unauthorized Practice Charge Pending
Thursday’s sentencing did not put an end to Montefusco’s criminal issues; in April, he was charged with the unlawful practice of law, a third-degree offense.
According to the Morris County Prosecutor’s Office, Montefusco met with an identified individual seeking counsel in a criminal matter several times between last December and April, and accepted a retainer payment.
The charge was pending as of Thursday, says First Assistant Prosecutor Thomas Zelante.
Montefusco, 72, who practiced in Parsippany, is represented by Randolph solo Edward Bilinkas and Frank Arleo of Arleo Donohue & Biancamano in West Orange. Neither returned a call.
U.S. Attorney’s Office spokesman Matthew Reilly did not provide a comment by press time.
A September 2008 indictment charged Mosberg with honest services fraud, conspiracy and bribery in connection with his alleged dealings with Montefusco.
The case, U.S. v. Mosberg, 08-cr-678, turned out to be a headache for the U.S. Attorney’s Office, as Wolfson ruled in December 2011 that 26 pretrial subpoenas were improperly issued because they sought records for nonexistent trial dates and went out without court approval.
Though prosecutors can subpoena evidence during a criminal investigation, after an indictment, they can do so only in preparation for a scheduled trial and only with the court’s blessing under Federal Rule of Criminal Procedure 17(c), Wolfson said.
Wolfson, concerned that prosecutors’ conduct in Mosberg might indicate more widespread Rule 17 violations, ordered the office to file papers explaining its subpoena practices.
Prosecutors acknowledged that five of the 26 Mosberg subpoenas were improper, but generally defended the office’s practices.
Wolfson held one hearing and scheduled another, but prosecutors dismissed the charges against Mosberg. The judge canceled as moot the second hearing, scheduled for Feb. 3, 2012, and never ordered further proceedings, according to electronic court documents.
At the time, office spokeswoman Rebekah Carmichael denied that the dismissal was aimed at thwarting Wolfson’s inquiry about the subpoena practices. Instead, the decision was based on Mosberg’s age, then 86, the length of pretrial proceedings and the likely sentencing in light of the Skilling decision, she said.