Carlos Luaces is charged with third-degree animal cruelty and is accused of killing a baby bird by spraying it and its nest with pesticides while serving as the head of the West Milford Department of Public Works.
The charges are based on interviews with a half-dozen public works employees, who said Luaces first ordered them to destroy the nest by spraying it with pesticide.
The employees refused, and on July 16, Luaces allegedly took a spray can filled with pesticide and doused the nest, killing the baby chicks and destroying another egg, Purcell said.
“This was the second family of birds that had lived in the nest, and the employees had grown attached to it,” Purcell said. “They were feeding the birds strawberries and other things.”
Gary Kraemer, Luaces' attorney, argued that the Passaic County Prosecutor's Office had not presented sufficient evidence to the grand jury and because of that, the indictment should be dismissed.
"There has to be some evidence that the bird was poisoned," Kraemer said. "It was presented in a way that leads the grand jury to infer that it (the herbicide spray) was poisonous to the bird."
Kraemer said the weed killer Luaces is alleged to have used was non-toxic for birds and other animals.
Assistant Prosecutor Peter Roby countered that while the herbicide was found to be safe on full-grown birds, the manufacturer's safety data sheet does not say anything about it being safe for just hatched birds or bird eggs.
Continuing his point that there is no definitive proof that the bird was poisoned, Kraemer said that an autopsy or a necropsy of the bird was never conducted and that when witnesses allegedly saw the bird struggling to live in the nest, it could have been caused by other factors.
"A hawk could have flown down and nicked the bird, injuring it and that's what they saw," Kraemer said.
Roby contended that presenting the grand jury with evidence that witnesses observed Luaces putting down the chemical sprayer in the DPW shop combined with comments he made to witnesses about a bird growing three heads because it got sprayed with the chemicals and that the birds were cute but "had to go," was sufficient to obtain an indictment.
Judge Scott Bennion agreed saying the threshold for a judge to dismiss an indictment is very high and that he felt the prosecution had presented enough evidence to the grand jury.
Bennion said whether the spray Luaces allegedly used was lethal to birds would have to be argued before a jury at a trial and it was not for him or a grand jury to decide.
According to Bennion -- who outlined the facts in the case -- Luaces is alleged to have sprayed weed killer around the West Milford Department of Public Works yard on July 16, 2015, and on a robin's nest located behind a garage, which at the time of the spraying contained three unhatched eggs and one baby bird.
On July 17, 2015, DPW workers allegedly noticed a dead bird in the nest along with the three unhatched eggs and then relocated the nest with the eggs and alleged dead bird to a protected area of the DPW yard, the motion says.
Three weeks later, on Aug. 5, 2015, two DPW employees complained of the incident to police and when police went to investigate found the nest, but not eggs, birds or mother robin.
Luaces, of Byram, served on the Byram Township Council from January 2012 until his resignation in February 2014.
In a statement to the New Jersey Herald regarding his resignation, he said he was doing so because he was "embarking on a new career endeavor" that did not leave him time to dedicate himself to the people of Byram.
Though originally just suspended, Luaces was terminated from his West Milford position in August 2015.
Following the judge's decision, Kraemer said he and Luaces were disappointed in the outcome as they still felt the evidence presented did not prove Luaces killed a bird.
"There is still not one iota of evidence that the spray is harmful to birds," Kraemer said.
Roby declined to comment.
Luaces will return to court on Feb. 13 for a pre-trial conference.
(New Jersey Herald - Jan 20, 2017)