Attorney plans to appeal convictions against Abate
BY VICTORIA HURLEY-SCHUBERT
Staff Writer

An appeal will be filed after the August sentencing of Frank G. Abate, the former executive director of the Western Monmouth Utilities Authority, Manalapan, challenging the jury's verdict in the federal trial.

Errors of the court in admitting certain evidence and prosecutorial misconduct are the reasons for the appeal, said attorney Joseph Benedict, who represented Abate during the two-week trial.

Abate, of Marlboro, was convicted in late May of accepting thousands of dollars worth of free architectural drawings for an addition to his home from developers in exchange for exercising his authority in favor of those developers as they sought WMUA approval for various projects. Abate was acquitted of four counts of defrauding the public of his honest services, two counts of extortion and one count of obstructing a grand jury investigation.

"Instead of serving Monmouth County taxpayers, Abate used the Western Monmouth Utilities Authority to enrich himself," U.S. Attorney Christopher J. Christie said after the verdict.

There are several grounds for appeal, said Benedict.

The first is a tape of a conversation Abate's architect had with the developers who supposedly paid the architectural fees, that was introduced as evidence, which Benedict said is not admissible because he did not have the opportunity to cross-examine all of the individuals on the tape. He also called it "extremely prejudicial."

Benedict also said the prosecutor overstepped his bounds when making his summations by prefacing his comments with the phrase "we know."

"We're not supposed to express our personal opinions about evidence which the prosecutor did during summations by saying 'We know,' " Benedict said.

Lawyers can comment on inferences the jury can draw from the evidence or explain what the evidence means, but no personal opinions are allowed, explained Benedict.

A prosecutor is also prohibited from commenting on a defendant's decision not to take the stand and to invoke his rights under the Fifth Amendment of the U.S. Constitution, said Benedict.

"Mr. Abate exercised his Fifth Amendment right not to testify and the prosecutor commented on it," the attorney said.

The jury was also permitted to hear testimony on the state of mind of several vendors, which Benedict said is "irrelevant and prejudicial" because only Abate's state of mind and motive was on trial.

Following the two-week trial in Newark, Abate was found guilty on five counts of defrauding the public of his honest services and one count of obstructing a grand jury investigation. The jury deliberated for about 10 hours over two days before reaching a verdict.

By returning a guilty verdict, the jury found Abate corruptly traded his position as the WMUA's executive director when developers with matters pending before the WMUA paid $4,800 for architectural plans for improvements to Abate's home. The jury also concluded that Abate tried to conceal his corrupt acts and impede a federal investigation.

Sentencing is scheduled for Aug. 13 before U.S. District Judge Susan D. Wigenton. Abate remains free on bail pending sentencing and faces a probable sentencing range of between 51 and 63 months in federal prison, according to the government's calculation under the advisory U.S. Sentencing Guidelines.