Merlino's goofy legal theory doesn't fly

JOEY MERLINO is due back in Philadelphia this week for a probation-violation hearing after a federal judge rejected the cockamamie legal argument presented by the reputed mobster's lawyers.

Merlino, 52, who was convicted of racketeering in 2001, was slapped with the violation notice Sept. 2 - four days before his supervised released period was scheduled to end - for allegedly associating with an old mob buddy and two fraudsters at a Florida cigar bar in June.

In court earlier this month, Merlino's attorney, Edwin Jacobs Jr., had tried to convince U.S. District Judge R. Barclay Surrick that Merlino was a free man because the government had failed to issue an official summons and set a court date by Sept. 6.

But Surrick didn't buy it, for one obvious reason: It was Jacobs who had asked for the delay in the first place, because of a scheduling issue.

"To accept Merlino's proposition would lead to an absurd result," Surrick wrote in a court memo released yesterday.

Merlino, the reputed ex-boss of the Philadelphia mob who some law-enforcement officials believe still runs the organization from his home in Boca Raton, Fla., will have to return to Surrick's courtroom Friday morning.

Assistant U.S. Attorney David Troyer declined to say yesterday whether he would seek to have Merlino thrown back in jail if Surrick agrees that he violated the terms of his supervised release, which prohibited him from associating with known felons and members of La Cosa Nostra.

"We're looking for him to be adequately punished for his violations," Troyer said.

Merlino is rumored to be involved with a new Florida restaurant - called Merlino's, appropriately enough - but Troyer said he continues to doubt that the former South Philly wiseguy has gone legit.

"I would have a lot of questions about that," he said. "Let's just leave it at that."