Courts

Judge Won’t Move Buffalo Billion Case To Buffalo

A federal judge on Tuesday turned down a request from upstate developers and former SUNY Polytechnic President Alain Kaloyeros to hold their upcoming trial in western New York, according to court filings.

Denying the change of venue from New York City to Buffalo was part of a slew of denials in pre-trial motions made by defense attorneys over the last several weeks. The filing was made public Tuesday by U.S. District Court Judge Valerie Caproni.

Attorneys for the developers LP Ciminelli had argued that holding the trial in Buffalo would have made it easier for them to be closer to home. At the same time, their attorneys argued many of the alleged incidents that resulted in the fraud and bribery charges took place in western New York.

But Caproni was unconvinced.

“While the moving Defendants live with their families in Buffalo, and some witnesses reside in Buffalo, there are also important witnesses elsewhere. And while certain relevant events allegedly took place in Buffalo, other events relevant to the allegations against the moving Defendants took place outside of Buffalo,” she wrote.

Set to begin next year, the trials are expected to center on the web of influence used to secure contracts and other economic development projects as part of the state’s effort to create jobs. A former close aide to Gov. Andrew Cuomo, Joe Percoco, will go on trial next month in connection with charges of fraud and receiving bribes.

Caproni also denied a series of motions that challenged pre-trial statements made by then-U.S. Attorney Preet Bharara, who was fired in March by President Donald Trump. That motion had been made for attorneys representing developers at COR Development.

Caproni wrote in her ruling that she found the argument that the grand jury was unduly swayed by Bharara’s comments — including his catchphrase “stay tuned” — unpersuasive.

“The statements and actions highlighted by the Syracuse Defendants do not constitute evidence of prejudicial preindictment publicity,” she wrote. “The public statements from the then-U.S. Attorney were properly qualified as allegations the Government intended to prove, did not express opinions of guilt, and were couched in generalities.”

Caproni by Nick Reisman on Scribd

Syracuse Development Projects At Issue In Corruption Case

Attorneys for the co-founders of the Syracuse-based COR Development are urging the federal judge in their corruption case to allow evidence that defends how their clients viewed economic development projects that have come under scrutiny in the investigation.

The attorneys in a letter to Judge Valerie Caproni write it’s necessary to demonstrate why Steven Aiello and Joseph Gerardi believed both the FIilm Hub and the Inner Habor projects were in the public value so as to show their “states of mind” when agreeing to take them on.

“This is not an issue that needs to be resolved, but just needs to be aired,” the lawyers wrote in the letter filed on Friday. “The Government’s effort to misleadingly present the Syracuse Defendants as jaded insiders, greedy for profits, should not be tolerated. Moreover, evidence of the perceived public value of the projects in this case is critical to the Syracuse Defendants’ defense. The Film Studio, for example, was a major part of Governor Cuomo’s central New York economic revitalization policy.”

The attorneys add that evidence at the trial will show funding problems put the project at risk, which in turn could have embarrassed Cuomo and hurt his efforts at economic revitalization in the area. Cuomo’s former close aide, Joe Percoco, will go on trial next month on bribery and bid rigging charges.

“This fully explains why Mr. Percoco may have been involved in the funding process for reasons that had nothing to do with bribery from the Syracuse Defendants,” the letter states.

The developers are set to go to trial next year in what is as sweeping bribery and fraud case that also drawn in former SUNY Polytechnic President Alain Kaloyeros.

But even as the attorneys want to defend how Aiello and Gerardi viewed the projects, they won’t be arguing the merits of the projects themselves and the circumstances surrounding not pursuing a labor agreement.

“Evidence about why the Inner Harbor Project was in the public interest similarly sheds critical light on the Syracuse Defendants’ states of mind,” the letter states. “The point is not that, objectively, this was a good public works project. It is rather that the Syracuse Defendants’ understandings of the importance of the project added to their high confidence that they would not be required to get an LPA.”

At the same time, the attorneys argued evidence of the developers’ campaign contributions to Cuomo should not be barred from being discussed at trial and are legally protected by the First Amendment.

In the letter, the attorneys write that ” when constitutionally-protected contributions are trotted out as evidence of a bribery scheme – particularly when they have scant relevance to the alleged scheme – jurors are unlikely to consider them merely on the convoluted signaling theories the Government relies on for its assertion of probative value.”

Gerard i by Nick Reisman on Scribd

Attorneys Spar Over Evidence In Percoco Case

Government prosecutors and attorneys for a former close aide to Gov. Andrew Cuomo are sparring over access to evidence in the corruption trial of Joe Percoco.

In a filing made public last week, Percoco attorney Barry Bohrer contended the U.S. attorney’s office was withholding key evidence in the case.

At the same time, Bohrer revealed details of the interview between prosecutors and Cuomo, as well as Linda Lacewell, the governor’s now-chief of staff.

The portion of the conversation revealed in the letter to U.S. District Court Judge Valerie Caproni shows Cuomo discussing when Percoco, then running his re-election campaign in 2014, would return to the public payroll in the governor’s office.

“Cuomo also stated that Percoco told Cuomo that he was going to take on private clients during the campaign, and Cuomo considered that intended conduct to be a bridge to Percoco’s new life in the private sector,” the letter states. “It was not until the end of the year that Cuomo asked Percoco to change his plans and come back to work in the Chamber for a period of time to stabilize things.”

This is in line with the governor’s public comments last year after Percoco was charged in a bribery and bid-rigging case that includes prominent upstate developers and former SUNY Polytechnic President Alain Kaloyeros.

Percoco claimed he earned as much as $125,000 in consulting fees, according to financial disclosure documents released on Monday by the Joint Commission on Public Ethics.

COR Development, the company that has been a key player in major development projects in Syracuse and Buffalo, paid Percoco, between $50,000 to $75,000 in consulting fees in 2014.

Percoco’s trial is set to begin next year.

The letter also shows Lacewell had learned of Percoco’s plans to return to the governor’s office after Election Day.

Bohrer wrote the information in these interviews “directly undermine crucial elements of the crime charged: that Percoco was a State official at the time he performed an official act, and that he was a State official, held himself out as a future State official, at the time he entered into a quid pro quo agreement with the Syracuse defendants.”

In a subsequent filing released Monday, the U.S. attorney’s office called the concerns “wholly unbelievable” and that the argument is, in essence, a rehash of old information. Federal prosecutors allege Percoco still acted in a “senior advisory function and supervisory role” in the campaign.

“If Percoco has failed to investigate his actions and interactions with others during the 2014 campaign,” the responding letter states, “that is not because the government ever obfuscated the importance of those facts.”

show_temp by Nick Reisman on Scribd

Feinman Sworn In To Court Of Appeals

Paul Feinman was ceremonially sworn in on Wednesday as the newest judge on the state’s highest court — the first openly gay man to serve on the Court of Appeals.

With his family and husband in attendance in the chambers of the Court of Appeals, Feinman spoke of his late brother, a comic and poet, who was also gay, as an inspiration.

“Were it not for him and all the leaders of the LGBT community and the LGBT judges who preceded me in the judiciary, it was all of them who forged a path before me and without them this day would not have been possible,” Feinman said. ”
From this, I understand I have an obligation for those who come after me.”

Feinman is joining one of the more diverse courts in its history, replacing the late Sheila Abdus-Salaam, who police say committed suicide earlier this year. The entirety of the court, based on mandatory retirements, has been nominated by Gov. Andrew Cuomo, a Democrat (Cuomo has appointed a Republican, Michael Garcia).

“Compare this court to any other court in the country — extraordinarily diverse,” said Vin Bonventre, an Albany Law School professor. “I don’t care what the category is. We’ve got a diverse court, which is great, because when they go into conference, they’re going in with different backgrounds, different wisdom, different perspectives.”

Senate Minority Leader Andrea Stewart-Cousins also hailed the moment, and Feinman’s credentials.

“Becoming the Appeals Court’s first open LGBT judge will bring further diversity to our highest court to greater reflect New York’s diverse citizenship,” she said. “Judge Feinman’s qualifications and skills gained throughout his distinguished career will also be a great addition and I wish him well in this great responsibility.”

Court Of Appeals Dismisses Challenge To De Blasio For WFP Support

A legal challenge to New York City Mayor Bill de Blasio’s designation as the candidate of the Working Families Party was tossed on Thursday by the state’s highest court.

The state Supreme Court and Appellate Division Court had previously rejected the challenge brought by the Reform Party on the grounds the suit “had failed to name a necessary party” — in this case the executive board of the Working Families Party.

In an unanimous decision, the Court of Appeals upheld the lower court’s decision.

De Blasio, seeking a second term, faces former New York City Councilman Sal Albanese in a primary next month. Assemblywoman Nicole Malliotakis is the Republican nominee.

131opn17 Decision by Nick Reisman on Scribd

George Bundy Smith, Judge Who Helped End Death Penalty, Has Died

Former state Court of Appeals Judge George Bundy Smith, who authored the decision that effectively ended the death penalty in New York state, died on Saturday at his home in Harlem.

He was 80.

Appointed to the Court of Appeals by Mario Cuomo in 1992, Smith proved to be a reliably liberal jurist on the court. Nearly 10 years after Cuomo, a staunch opponent of the death penalty, had left office, Smith authored the 2004 decision that ended the practice in New York, taking issue with the state’s sentencing guidelines.

“George is a man of few words, but they are absolutely the right words,” said then-Court of Appeals Judge Judith Kaye in 1995.

Smith was born April 7, 1937 in New Orleans and attended Yale Law School in 1955. During his time in law school, Smith took part in demonstrations in Alabama as a freedom rider. He was arrested while sitting at a whites-only lunch counter at a bus depot alongside civil rights leaders Ralph Abernathy and William Sloane Coffin.

“He leaves our nation a better place than he found it,” Chief Judge Janet DiFiore said in a statement. “We will miss him deeply.”

Smith’s career started as a staff attorney at the NAACP and was a founding member of the Metropolitan Black Association.

He later rose through the judiciary to become a justice at the Appellate Division of State Supreme Court in Manhattan.

In 1992, he was nominated to replace Judge Fritz Alexander, by Cuomo.

“He was a giant who left a mark on New York, and we are all the better for it,” said Gov. Andrew Cuomo. “My father was proud to appoint Judge Bundy Smith to the Court of Appeals. I was proud to know him, and was honored he presided over my swearing in as Attorney General.”

He was ultimately replaced by Judge Eugene Pigott, nominated Gov. George Pataki, a Republican, in 2006. Pataki had criticized the death penalty decision as “wrong” and was criticized by Democratic lawmakers in Albany for appointing a less diverse bench. At the time, Smith was the only black judge on the bench.

The top Republican in the Senate on Monday praised Smith’s tenure and career.

“Judge Smith’s legal and professional career showed a commitment to independence, fairness, and the rule of law,” said Senate Majority Leader John Flanagan. “With his work at the NAACP Legal Defense and Education Fund, and to be just the third African American on the state’s highest court, he exhibited a lifelong advocacy for civil rights. On behalf of the entire state Senate, I offer my deepest condolences to his family, friends, and colleagues.”

Abdus-Salaam’s Death Ruled A Suicide

The April death of Judge Sheila Abdus-Salaam has been ruled a suicide by drowning by the New York City medical examiner’s office.

Abdus-Salaam was found dead in the Hudson River on April 12; she had been reported missing a day earlier.

Abdus-Salaam was the first African-American woman to be appointed to the state’s highest court, the Court of Appeals.

Gov. Andrew Cuomo in June nominated Paul Feinman to succeed Abdus-Salaam on the bench. Feinman is the court’s first openly gay judge.

Panel Censures Judge Over Ticket Fixing

The administrator of the state’s judicial conduct panel on Thursday recommended the removal of an Oswego County justice after he was found to have helped fix a traffic ticket for an acquaintance.

“A judge does not need ethics training to know that ticket-fixing perverts justice and is wrong,” said Robert Tembeckjian, the commission’s administrator. “Few things are as plain and simple. After 40 years of Commission decisions on the subject, including some removals from office, ticket-fixing can be a career-ending mistake that no judge should risk.”

The state Commission on Judicial Conduct found Justice James Aluzzi should be censured for effort to help dismiss the ticket of a businessman found to have been driving with tinted windows.

According to the commission, Aluzzi took the ticket to the court in which was pending, telling the clerk to ask the judge handling the case that it be dismissed.

The clerk complied, the commission said, because it was a request from a judge.

Aluzzi has served as justice in the town of Volney since 2003 and his current term expires at the end of the year.

Bonacic: ‘No Rush’ In Court Of Appeals Confirmation

From the Morning Memo:

As the legislative session winds down this month in Albany, Senate Judiciary Committee Chairman John Bonacic said he is in no rush to confirm whoever Gov. Andrew Cuomo nominates to the state Court of Appeals.

“I’m in no rush to fast forward anything,” he said in an interview on Tuesday.

The nomination, from a slate of 10 candidates released last week by a screening panel, would fill the vacancy left by the death in April of Judge Sheila Abdus-Salaam.

The open seat leaves a tight time frame for Cuomo to nominate a judge and have the Senate confirm the new member before lawmakers leave town for the year on June 21.

“I think the governor will give us a nominee because he’s expressed a desire to have the seventh court of appeals judge in place before we leave for the end of session,” Bonacic said.

But he doesn’t want to speed through what should be a deliberative process, Bonacic said.

“I was impressed with the nominees. Many of them were appellate judges with impeccable records,” he said. “I’m not so sure it will get done. We’re not going to rush it for the sake of having an expedited process. I don’t believe in that. We’ll have a thorough vetting.”

Anatomy Of An Error

Reporters hate making errors.

But what happens when an error is one that has been running for four years and has been repeated over the last 24 hours?

That’s the conundrum for the death of Judge Sheila Abdus-Salaam. In the dozens of local and national articles published online, in newspapers and aired on television in the hours since her body was found in the Hudson River, she has been described as the first Muslim woman to serve on the Court of Appeals or the first Muslim judge in the U.S.

That description is not accurate. Abdus-Salaam was born Sheila Turner and while her first husband was Muslim, she never converted to Islam, according to Court of Appeals spokesman Gary Spencer.

Full stop: This, of course, does not negate her status as an important trailblazer in the state’s legal history. She was the first black woman to serve on the state’s highest court.

Spencer, the court spokesman, told me Abdus-Salaam did not mind being referred to a as a Muslim woman and never corrected it.

That being said, it’s fascinating, and a bit disturbing to me as a reporter, how this went unchecked, if only for posterity’s sake. Someday there will be a practicing Muslim serving on the Court of Appeals who should be the one to be identified and honored with the distinction.

Attempting to reverse engineer the error and find its source was not easy. The first and earliest erroneously identifying her religion was in a press release from Sen. Kevin Parker’s office.

Gov. Andrew Cuomo’s office never identified her religion in any of its official statements.

The stories that appeared in The Daily News and The New York Times from April 2013 and May 2013 — the time between her nomination by Cuomo and her confirmation by the state Senate — do not identify her religion either. Attorney General Eric Schneiderman, in a statement released on Wednesday evening, did refer to her incorrectly as the “first Muslim female judge” in the United States.

Which leaves me with this conclusion: Assumptions were made by reporters, at best given only a cursory check and then reported. And during her life she never thought it was important to correct the error, if she saw one at all.