The attorney for Atlantic City High School's suspended principal is trying again to have the case dismissed.
Constance Days-Chapman faces several counts of official misconduct along with endangering the welfare of a child and hindering for allegedly notifying Mayor Marty Small and Dr. La'Quetta Small about their teenage daughter's allegations of abuse, rather than calling the Division of Child Protection and Permanency hotline, as required.
But her attorney has argued that Days-Chapman reported the claims in phone calls to a supervisor at the Division of Child Protection and Permanency. Lee Vartan alleges that his client is overcharged in a case that he claims is a first of its kind.
In July, Judge Bernard DeLury denied a motion to dismiss the indictment, and a follow-up filing asking for reconsideration.
Vartan filed a motion Tuesday with the Appellate Division, seeking permission to file an appeal while the case is still moving forward.
"Failure to report potential child abuse is a non-criminal offense carrying a maximum penalty of six months," Vartan writes in the latest filing. "Official misconduct is a second-degree crime that carries a mandatory minimum sentence of five years. The State’s elevation of a disorderly persons offense to multiple second- and third-degree crimes created numerous facial deficiencies in the Indictment against Movant-Defendant Constance Days-Chapman that warrant interlocutory review."
Vartan argues that not only did Days-Chapman report the allegations, in doing so, she is immune from prosecution.
Days-Chapman allegedly was told of the allegations of abuse made by the Smalls' teenage daughter twice.
The first time, according to the charges, the teen went directly to Days-Chapman — who she knows as "Aunt Mandy," due to her close relationship with the Smalls.
A second report brought in guidance counselor Jonathan Rivera and his supervisor, Laurie Carter. They met with Days-Chapman, who allegedly claimed not to have heard about the allegations previously, but insisted she would make the report.
The state alleges that did not happen.
But Days-Chapman's attorney says there is proof she spoke with Bianca Dozier, a DCPP supervisor, on four occasions, with the first on Jan. 23, 2024, after a second meeting with Rivera and Carter.
"The State and the motion court discounted these conversations because Days-Chapman did not directly call a specific DCPP hotline number," Vartan writes. "But the immunity statute contains no such requirement. In fact, the Legislature expressed that a report can be made by 'telephone or otherwise.'"
A 21-minute phone call with Dozier was initiated by the DCPP supervisor, Vartan notes.
It was placed five minutes after a DCPP supervisor emailed the Special Victims Unit to “Please let me know if you would like us to hold off on responding today. Dad is the mayor of AC and mom is the superintendent of AC Public Schools.”
"DCPP itself viewed the matter in such a way that 'hold[ing] off on responding' was a viable option given the circumstances," he writes.
When DCPP did investigate the claims, the conclusion was that they were "unfounded" or "not established," the filing states.
Vartan also argues that "the other problem with the State’s efforts to force the square peg of failure to report into the round hole of criminal conduct is that the Indictment has stretched the statutes charged well beyond the legislative language."
He notes that the statute to report makes it the duty of “any person” in New Jersey.
"A duty applicable to everyone cannot be the duty within the meaning of official misconduct," Vartan writes.
Days-Chapman and the Smalls are due back in court Sept. 29, when they will see which judge is taking over the case. DeLury is retiring.
Her trial likely would be the last of the three.
Mayor Small's is currently set for Nov. 10, with his wife's scheduled for Dec. 1.
