Spelled Just As It Sounds: 2 gs, 2 zs, and 2 ts.

David Juergens, after taking a thirteen year hiatus from working on criminal appeals, obtained reversals of two convictions for a single client, one for burglary after a trial and the other for criminal possession of a weapon after a guilty plea (see, People v Williams,2010 NY Slip Op 09663 [Appeal number 1, 4th Dept 12/30/10] and People v Williams,2010 NY Slip Op 09663 [Appeal number 2, 4th Dept 12/30/10]).

The primary substantive issue on the appeal from the burglary conviction was whether the money seized from his pocket by a police officer should have been suppressed as the fruit of an unlawful arrest. First, the Court found that the police were justified in stopping defendant's vehicle for a speeding violation, and in thereafter asking defendant to produce his license and registration and to exit the vehicle. However, the three judge majority found that

The officers who conducted the traffic stop, however, "went beyond merely ordering defendant from his car. [They] took the additional protective measures' of frisking defendant, handcuffing him and placing him in a police car . . . [S]uch an intrusion amounts to an arrest[,] which must be supported by probable cause" (Johnson, 102 AD2d at 626; see People v Brnja, 50 NY2d 366, 372). At the time of the stop and arrest of defendant, "[n]o probable cause yet existed to arrest him on burglary charges for[,] although the police had reports of possibly suspicious behavior, they had no knowledge [that] a burglary had even been committed" (People v Randall, 85 AD2d 754, 754-755; cf. People v Hicks, 68 NY2d 234, 241). The officers were not at liberty to detain defendant while other officers attempted to determine whether a burglary had in fact been committed, i.e., "until evidence establishing probable cause could be found" (People v Battaglia, 82 AD2d 389, 396 [Hancock, J., dissenting], revd on dissent of Hancock, J. 56 NY2d 558; see People v Nicodemus, 247 AD2d 833, 836, lv denied 92 [*2]NY2d 858).
Because the arrest of defendant was illegal, the money seized from his pocket must be suppressed as flowing directly from the illegal arrest. Further, "[i]t cannot be said that the money found on defendant . . . [was] the product of a source independent of the defendant's detention or that the illegal activity was attenuated by a significant intervening event which justified the conclusion that [such] evidence was not the product of the illegal activity" (Battaglia, 82 AD2d at 397 [internal quotation marks omitted]).

A fourth Justice agreed with this holding, but disagreed with the majority's conclusion that the error in refusing to suppress the evidence was not harmless beyond a reasonable doubt. Presiding Justice Scudder would have held that this was a a legitimate stop pursuant to People v Hicks, 68 NY2d 234.

But this Fourth Amendment holding is not the real subject of this post. Rather, I am writing to highlight both the ground for the reversal of the weapons conviction and to implore trial court attorneys to learn an important lesson from this reversal.

The Appellate Division's reversal on the weapons conviction was because that plea was induced by the promise that the sentence would run concurrently with the sentence imposed upon the prior conviction in the Burglary case. As the Court explained

Because we are reversing that prior judgment of conviction, the judgment in appeal No. 1 must be reversed, the plea vacated and the matter remitted to Supreme Court for further proceedings on the indictment (see People v Fuggazzatto, 62 NY2d 862).

The Fuggazzatto rule is a simple one - if a defendant is convicted on one indictment and then enters a plea on a second indictment with a promise that he will receive concurrent time, a defendant who obtains reversal of the first conviction is also entitled to reversal of the second conviction. However, and this is the lesson for trial attorneys, in order for your client to obtain the benefit of the the holding in Fuggazzatto one must file notices of appeal from both convictions. There is no excuse or strategy that can justify the attorney filing the notice of appeal from the trial conviction and, absent a waiver of the right to appeal, failing to file the notice of appeal from the subsequent plea conviction.

Having been the appellate attorney in cases in which a winning issue was raised from the trial conviction, resulting in reversal, but in which the plea conviction remained solely due to the failure to file a notice of appeal, I can report that client's will not be very appreciative of such a reversal. Instead, they will want to know what can be done about the failure to file a notice of appeal. You don't want to be the attorney who failed to file the required second notice of appeal.

Pig Of The Year: UC Berkeley Law Dean Signs Letter Demanding Millions More In Pension Benefits

Christopher Edley Jr.

http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2010/12/29/MNDC1GUSCT.DTL&tsp=1

Tactics to Consider in Trying a Child Sex Case

By Jill Paperno, Second Assistant Monroe County Public Defender

I just finished a child sex offense trial, and I thought I'd share some thoughts. I tried a few different things this trial that you may want to consider (or not):

1. Voir dire:

In voir dire the potential jurors are asked if they can be fair when the case involves young children. I tried explaining more about what it was going to be like - the door will open, a young child will walk in escorted, but then walk up alone. The room is too big, the child is too small, you may not hear the child's voice when they're sworn, the chair is too big, their feet may dangle. You may get a sick feeling in the pit of your stomachs. Because whether or not this happened, children don't belong here. More people decided they couldn't be fair after that.

I also addressed the topic of a supposed expert on "Child Sexual Abuse Accommodation Syndrome" in voir dire - what is science, how to determine if someone is an expert, are they comfortable making the assessment, is anecdotal information scientific, etc.

2. Opening Statement

When I opened I talked about how doctors from the local Child Abuse Advocacy Center often determine that findings are normal in children, but then opine that this determination was consistent with the child having been abused. I talked about how any child - even one of their own, could be seen by such a doctor, and come away with a description of findings consistent with abuse. I also talked about the CSAAS expert would likely conclude that all behavior, anything a child does, is consistent with CSAAS. So no matter whether the child is abused or not, he will conclude the behavior is consistent with CSAAS. I then noted that any defendant starts any case with two witnesses against him, the doctor from the child abuse advocacy center and the CSAAS "expert", whether or not he's guilty.

3. Cross-Examination

As usual, the photos are critical. In my recent case what they showed about the height of the bed and the number of particular toys was of great help in examining the People's witnesses. Always examine the photos. Look for the details. Also, I rarely address the actual act in my cross -just all the circumstances around. Happy to share if you have any questions.

I questioned the kids a lot about the trial preparation they had with the District Attorney and others. Listen to how the prosecutor questions the kids and reinforces the testimony and consider whether you can use that to support a claim that the children were led and reinforced in their version of events.

4. Summation

I began the sum by saying that no juror comes into the courthouse on a child sex offense case saying "I can't wait to acquit." I then told them they must. There are different approaches to summations. I often mention reasonable doubt. In fact, for many of my cases, if I never mentioned reasonable doubt in a summation, I'd have very little to say. It's my chorus.

I again talked about the sadness of a child being in the courtroom - whether or not the events occurred. I acknowledged what it looked like for a kid to be testifying and what it may have felt like for them.

I actually talked about acquitting on a technicality- I think you have to be careful as to how you phrase it, but I talked about the uncertain dates given by the kids perhaps being what some might think of as technicalities, but they go to the reliability of the testimony. So even if the dates weren't proven BRD, they had to acquit.

I told them not to compromise. There were some weaker witnesses and one stronger one. I told them that if they felt there wasn't PBRD with respect to the other kids, but John Doe was a strong witness, they shouldn't say, well he's the strongest, so let's convict on his counts. I suggested that if each case were tried separately, they wouldn't find the evidence in his case to be PBRD, so they shouldn't compare and compromise. (Be careful of this argument - you don't want them to refuse to compromise and convict on the top count. But I thought I had nothing to lose with that argument in this case.)

I also talked about how some of my questions which might be thought of as stupid lawyer tricks weren't intended to trick the kids, but instead show that when they were off the script, they couldn't keep things straight.

At each stage of the case, I talked about how young children may not tell the truth, but may not be intentionally lying, because their perceptions and recollections can be shaped by people they've spoken with, reactions, questions that have been asked, etc. (got a little help from the People's doctor on that one). I also told them I expected the DA might argue that in order to acquit they'd have to find the kids were lying. Then talked about how if the kids weren't intentionally lying, but their memories or testimony were shaped over time by the various factors, their testimony was not reliable, and not the basis for PBRD.

So in this case I talked more directly about the elephants in the room.

5. Miscellaneous

Object to really inflammatory language. Anticipate that the prosecutor will argue "why would they lie" or "what's their motive to lie" and when you lose your motion to preclude on burden shifting answer it in your summation.

(Editors note- Jill (who recently received the Jeffrey A. Jacobs Memorial award for her outstanding work as criminal defense attorney) is too modest to mention that she obtained a complete acquittal on charges involving four children. Brian Shiffrin)

Marine Corps expands infantry bomb dog program

The San Diego Union Tribune reports that: "The Marine Corps is greatly expanding its experimental program that deploys infantrymento combat zones with bomb-sniffing dogs, declaring it a successful component of the fight against the insurgents’ most lethal killer — homemade bombs dug into roads and footpaths.

The Marines plan to deploy more than 600 dogs with their troops in Afghanistan, doubling the program they began testing four years ago. American K-9 Interdiction, a veteran-owned company based in Carrollton, Va., was awarded a new contract this fall worth as much as $35 million to train and kennel Marine Corps Improvised Explosive Device Detector Dogs through September 2012."

For a link to the entire article:
http://www.signonsandiego.com/news/2010/dec/04/marine-corps-expands-infantry-bomb-dog-program/

Prudent Counsel Will Continue to Challenge the Constitutionality of New York's Persistent Felony Offender Sentencing Statutes

Back in March, I wrote about the decision in Besser v Walsh, 601 F3d 163 [2d Cir 3/31/10]) in which the United States Court of Appeals for the Second Circuit struck down New York's persistent felony offender law as unconstitutional, holding that “the New York courts’ upholding of the constitutionality of the New York state persistent felony offender (PFO)sentencing statutes after the United States Supreme Court’s decision in Blakely v Washington (542 US 296 [2004]), was an unreasonable application of clearly established Sixth and Fourteenth Amendment law.”

Probably because I found it depressing, I never wrote about the en banc decision of the Second Circuit in Portalatin v Graham (624 F3d 69 [2d Cir 10/18/10]) which reversed that decision and held that in upholding the New York PFO sentencing statutes "the state courts did not engage in an unreasonable application of clearly established Supreme Court precedent in affirming the convictions."

Yet, in an indirect way, the decision of the New York Court of Appeals in People v Battles (_NY3d_, 2010 NY Slip Op 09160 [12/14/10]), in which that Court once again rejected a challenge to the constitutionality of New York's persistent Felony Offender sentencing laws, suggests that Portalatin is not necessarily the last word on this issue. The reason one see a glimmer of hope is that Chief Judge Lippman wrote a strong dissent in which he first pointed out that the Court in Portalatin did not "decide not whether the state court correctly interpreted the doctrine of federal law on which the claim is predicated, but rather whether the state court's interpretation was unreasonable in light of the holdings of the United States Supreme Court at the time." Then, Chief Judge Lippman wrote that there is no material difference between the California statute struck down by the United States Supreme Court in Cunningham v California (549 US 270 [2007]) "and our persistent felony offender sentencing statutes."

Chief Judge Lippman's dissent suggests that there is a chance that the Supreme Court would grant a petition for certiorari and then strike down New York's PFO sentencing statutes. I recognize that in writing that last sentence I sound like Lloyd in Dumber and Dumber when told by Mary his chances are one in a million (So you're telling me there's a chance... *YEAH!). But since there is a chance, however slight, prudent counsel will continue to raise constitutional challenge to the statutes. Otherwise, if these statutes are eventually overturned one's clients will not be able to directly challenge their unconstitutionally imposed life sentences.

Understand that when you raise such a challenge courts might respond like the court did in United States v Harris, 932 F2d 1529, 1537 (5th Cir. 1991):

Finally, the appellants raise the tired argument that the sentencing guidelines are unconstitutional since they permit the district court to resolve factual disputes without the benefit of a jury. This very contention has been raised before, and consistently rejected. See e.g., United States v. Byrd, 898 F.2d 450, 452-52 (5th Cir. 1990); United States v. Casto, 889 F2d 562, 569-70 (5th Cir. 1989), cert. denied, U.S. , 110 S. Ct. 1164, 1 (1990) [emphasis added]. Accordingly, we do likewise.

Of course, those "tired arguments" were eventually accepted by the Supreme Court in Apprendi v New Jersey (530 US 466 [2000]), Blakely v Washington (542 US 296 [2004]) and Cunningham v California (549 US 270 [2007]).

How do you spell "Pyrrhic victory"?

A new post. It's only been like a year and a half. Anyway, there's a new Appellate Division case you should read.

Matter of Carothers v GEICO Indem. Co., __ A.D. 3d, __, 2010 NY Slip Op 09256 (2d Dep't, 2010).

So Carothers did not get their bills into evidence because the sole witness at trial worked for a third-party billing company, and said billing company did not create the bills. Instead, the medical office would create the bills, the billing company would access them online, print them out, and mail them. The Appellate Division now affirms the holding of the Appellate Term that this is insufficient to establish the admissibility of the bills.

This is probably the correct outcome.

BUT...

The Appellate Division now holds (and this ain't dicta, this is essential to the holding) that "although a proper foundation can be established by a recipient of records who does not have personal knowledge of the maker's business practices and procedures, there must still be a showing that the recipient either incorporated the records into its own records or relied upon the records in its day-to-day operations." (Emphasis mine.)

Thus, where a third-party biller witness lacks personal knowledge of the medical provider's procedures, the biller can still get the bills into evidence so long as:
1) the information received from the medical office was incorporated in the billing company's records, OR
2) the information received from the medical office is used in the billing company's day-to-day operations.

In the standard scenario of a third-party biller witness (or affiant, for that matter) who creates the bills based on information received from the medical office, the biller should now be able to get the bills into evidence even if the biller has no personal knowledge of the medical office's procedures, so long as at least one of the elements of Carothers is satisfied.

This just so happens to overrule every Appellate Term decision that held that a third-party biller cannot get the bills into evidence solely on the basis that the biller lacks personal knowledge of the procedures of the medical office. See, e.g.,, Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 26 Misc 3d 132(A) (App. Term, 2d Dep't, 2010).

Merry Christmas.

President Obama signs Animal Crush Video Prohibition Act into law

On December 9, President Barack Obama signed the Animal Crush Video Prohibition Act of 2010 into law. The new law prohibits the creation and distribution of  so called “crush videos” and establishes penalties, inclusive of up to seven years in prison.

In April 2010, the United States Supreme Court struck down the original so called “Crush Act” due to a finding that its language to be overbroad and unconstitutional. The Court’s ruling did leave allow the Act to be rewritten and more narrowly tailored. 

The new law has a narrower focus than the prior law, but still prohibits creating or distributing depictions of non-human animals being intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury. The law exempts videos of hunting, trapping and fishing.

Link to the Animal Crush Video Prohibition Act.

Jail time in Michigan dog burning case

Kristian Dennard Jackson & Decarlos Lashawn Young pled guilty on December 1, 2010 to animal killing/torturing and arson of real property in Wayne County Circuit Court, Detroit, Michigan. In August 2010, they set a young pit bull on fire after a failed attempt at hanging her to death.

Both defendants were habitual third offenders and they pled to that as well. Young is to serve 17 months to 8 years, and Jackson is to serve 13 months to 8 years in the Michigan Department of Corrections. Both defendants are currently scheduled to be formally sentenced on December 16, 2010 

Can a Defense Counsel Validly Concede Guilt to One or More Counts Over the Defendant’s Objection?

In People v Colville (2010 NY Slip Op 07185 [2nd Dept. Oct 5, 2010]) the Second Department, without reaching a decision on the issue, engaged in detailed review of the arguments as to whether the decision to submit a lesser included offense is a fundamental one that must be made by the defendant or is a strategic one that can be made by counsel. The Colville court noted that courts have split on this issue, which has not yet been addressed by the New York Court of Appeals. On this issue the Appellate Division, Fourth Department, in People v Taylor (2 AD3d 1306 [4th Dept 2003]) held that "defendant was not denied his right to make a “fundamental decision[ ]” (internal citation omitted) when the court considered a lesser included offense charge after discussing the issue with defense counsel and the prosecutor, without input from defendant.”

What about the related issue of whether defense counsel may validly concede guilt to one of more counts over the defendant’s objection? One might think that such a concession is effectively no different than a guilty plea, and the decision whether to plead guilty is fundamental one for the defendant and not counsel (Jones v Barnes, 463 U.S. 745 [1983]; People v White, 73 NY2d 468 [1989]). Under such reasoning it would seem clear that counsel cannot make such a concession over the objection of the defendant. That position was recently rejected by the Court in Washington v Poole (_F Supp_, 2010 WL 3910176 (WDNY 10/6/10), in denying a petition for a writ of habeas corpus in which Mr. Washington urged that he was denied effective assistance of counsel when his counsel, over Mr. Washington’s objection, conceded Washington was involved in the robbery but disputed whether the handguns used during the robbery were “loaded and operable” so as to make Washington guilty of robbery in the first degree. The Court explained that

In Florida v Nixon, 543 US 175 (2004), the Supreme Court indicated that while defense counsel has an obligation to explain to the defendant a proposed strategy of conceding guilt at the guilt phase of a capital trial, counsel has no further obligation to obtain the defendant's express consent to this strategy. Id. at 189. In Nixon, during the guilt phase of a capital trial, the defense attorney conceded that his client had committed the murder. The strategy there was to establish credibility with the jury by conceding the murder, and then to seek leniency at the sentencing phase. However, the defendant was convicted of the murder and sentenced to death. The state appellate court in Nixon reversed the defendant's conviction and held that trial counsel's concession of guilt, without defendant's express consent, deprived the defendant of his right to the effective assistance of counsel guaranteed by the Sixth Amendment....The United States Supreme Court reversed. First, the Nixon court expressly rejected the proposition-also urged by petitioner here-that a concession of guilt is the functional equivalent of a guilty plea requiring the consent of the accused on the record. ...
Here, Washington has rested his ineffective assistance argument on counsel's failure to obtain his expression consent to the concession-of-guilt strategy, and has argued that prejudice must be presumed in these circumstances. The Supreme Court rejected this proposition in Nixon, holding that defendant must show both that the strategic decision to concede guilt was objectively unreasonable and that the defendant was actually prejudiced by the decision. See, e.g., Sondey v White, No. 05-71831, 2009 WL 4800413, at *24-25 (E.D.Mich. Dec.9, 2009) (“The lesson of Nixon, as reflected in cases decided both before and after that decision, is ‘that counsel's concession of a client's guilt does not automatically constitute deficient performance.’ Young v Catoe, 205 F3d 750, 759 (4th Cir.2000). More specifically, ‘conceding guilt to one count of a multi-count indictment to bolster the case for innocence on the remaining counts is a valid trial strategy which, by itself, does not rise to the level of deficient performance.’ United States v Holman, 314 F.3d 837, 840 (7th Cir.2002).”).

The court's reliance on the Supreme Court's decision in Nixon, a capital case, would be more persuasive if capital case jurisprudence always applies in the non-capital context. But that is not the case. For example, in Beck v Alabama (447 US 625, 638 [1980]) the Supreme Court held that although it would have been constitutional in a non-capital context, a state statute precluding consideration of an appropriate lesser included offense violated due process in a capital case.

Beating the Box or Breath Test Issues in a Nutshell

Winter in Ithaca, NY has finally arrived. Today it is 6 degrees with the windchill, yow! What's funny about that is by Ithaca Winter standards that is still fairly warm. I had a friend of mine visit one winter from Greece, and of course the day he came it was well below zero with the wind. He thought we were crazy to live here. He made it about 15 minutes outside before his breathing became labored and he started to look a bit pee kid.

Anyway, "THE" box, the definite article for sure. The box refers of course to the breathalyzer, aka the breath test, aka the Datamaster (the machine preference of City, Village, and Town Police), aka The Chemical test, aka The Alcotest (the machine preferred by NYS Troopers).

The Box provides a fast, easy, and cheap means to test the breath to indirectly compute a BAC (blood alcohol concentration). We can argue all day about: fast, cheap, easy, and indirect testing. The box is Not to be confused with the field breath test, called the alcosensor, done at roadside, and not admissible in NYS for a BAC result but merely to prove the consumption of alcohol.

There are Three main problem areas in Breath Testing:

1. problem with the person: medications, diseases of the lungs, ie. asthma, COPDs, allergies, diabetes, GERD (Gastro-Esophageal Reflux Disease), is it stomach contents, etc.

2. problem with the machine: out of calibration, simulator/reference solution has bad chemicals (out of date), broken parts, maintenance issues, temperature issues, etc.

3. problem with the operator: did not follow protocols, did not do proper observation prior to testing, used radio, phone, or beeper in room (Radio frequency Interference), did not check mouth for foreign substances, dentures, etc.

Is the BAC machine result reliable? Can the jury rely upon it?

Is the BAC machine result accurate? Is it a real number of the person's BAC?

Another potential issue:

TIMING: Is the machine BAC result (Post driving) a true measure of the BAC at the time of driving?

The idea of arguing that breath testing "in general" is bad, is inaccurate, and is unreliable is usually not the best approach. Juries want to have a "specific" reason or reasons why something like a breath test result in a specific case/situation is not to be trusted.

Beating the BOX then becomes a reality. Because in the end, the jurors should only follow and apply ONE presumption at trial, the POI (presumption of innocence). The government must prove their case, including the BAC result to the BRD standard (Beyond a Reasonable Doubt).

Removal of a Prospective Juror for Living in an Almost Exclusively Non-White Neighborhood is a Race Neutral Reason for a Peremptory Challenge

People v Black (_ NY3d_, 2010 NY Slip Op 08766 [11/3010]) is one of the four cases with Batson issues that the Court considered in People v Hecker. The Court, in part, determined whether the trial court was correct in finding that the District Attorney had put forth a race neutral reason for using a peremptory challenge to remove prospective juror Gordon. The People's reasons for striking Gordon were twofold: she was unemployed and lived in East New York, the neighborhood adjacent to the crime scene.

The trial court determined that these reasons advanced by the People were race neutral and invited defense counsel to argue why it should find these reasons to be pretextual. First, defense counsel noted that East New York is the largest "identifiable neighborhood" in Brooklyn and nothing about Gordon's answers in voir dire suggested that she lived near the vicinity of the crime scene. Next, defense counsel asserted that the unemployment status of Gordon should not be held against them in evaluating their qualifications to serve as jurors.

The Court of Appeals agreed that these were acceptable race neutral reasons, explaining that

A party, for example, might not want a prospective juror who lives in a particular neighborhood or who works in a certain field to sit on the jury because that party believes — for reasons unrelated to the facts of the case — that such individual may have a more sympathetic attitude or view toward the opposing party.

This might not seem all that unusual a holding unless one considers a critical fact not mentioned in the decision: East New York is a large neighborhood in Brooklyn (more than 170,000 residents) that is virtually entirely non-white. According to the 2000 census only about two percent of the residents of East New York are white (see). (For a detailed description of East New York's demographics, see Thabitt, How East New York Became a Ghetto.

Thus, there is a real danger that excusing a juror for living in East New York, in a case in which the crime did not occur in East New York, is functionally no different than excusing a juror for being non-white. The Court’s decision utterly fails to discuss how to determine whether the removal of an African American juror for living in an entirely non-white neighborhood was a race neutral reason for exercising a peremptory challenge or simply a race-proxy means for removing a non-white juror.

The need for guidance is particularly great for trial in Brooklyn, a borough comprised of highly segregated neighborhoods, in which two thirds of African Americans live in neighborhoods in which they comprise at least 65% of the population (see). If a prospective juror's neighborhood is always accepted as a race neutral reason for a peremptory challenge, an attorney in Brooklyn can easily remove most African American jurors by stating that the reason for the challenges is the (predominantly African American) neighborhood in which they reside.

In the Batson context, Justice Marshall, long ago recognized the danger that neighborhood might be a proxy for race (Lynn v Alabama, 493 US 945, 947 [1989] [Marshall, J., dissenting from denial of certiorari] [“In a small community with racially identifiable neighborhoods, an individual's address closely corresponds to his or her race”].

Similarly, the Ninth Circuit Court of Appeals, in a case in which the prosecutor exercised a peremptory challenge of a black prospective juror because the neighborhood of her residence would tend to cause her to believe that “police in Compton . . . pick on black people ”, held that “the prosecutor's invocation of residence rested on a stereotypical racial reason”and that “[r]esidence...often acts as an ethnic badge. As study after study has showed, residence, especially in urban centers, can be the most accurate predictor of race” (United States v Bishop, 959 F2d 820, 827-828 [9th Cir 1992]).

Subsequently, however, in Boyde v Brown, (404 F3d 1159, 1171 [9th Cir 2005]) either sharply limited or overruled this holding:

It may be unpersuasive for a prosecutor to use residence without attempting to tie it to the facts of the case. A trial court could consider that lack of explanation when it decides, in Batson's third step, whether to credit the prosecutor's explanation or find that residence was a pretext for what was really a race-based challenge.... (“It is not until the third step that the persuasiveness of the justification becomes relevant.”). To the extent Bishop suggests that the race-neutrality of an explanation depends on its persuasiveness, it has been effectively overruled by Purkett [ v Elem, 514 US 765, 768 (1995)].

Mastering DWI Defense

Well as the year winds down it is a perfect time for reflection. Why do I do what I do? DWI defense: It is challenging, and my goal is mastery.

You see I have always wanted to do things very well. As a kid I loved magic, photography, and bodybuilding/powerlifting. I spent countless hours engaged in those activities. Time was never a factor. It seemed as if I got so involved that the world did not exist. My sister called me (more like labeled me) obsessive and intense. So why was I this way? What drove me?

One of my mentors (btw a good thing to have) Dr. John Demartini, said that the VOID drives the VALUE.

I have always felt less than. I have felt the need to prove myself to the world. To prove my value, my worth, and my ability. I was short, pimpled (nice way to say Acne), curly haired (not a popular thing in my day), husky (another word for fat), clumsy (uncoordinated), nerdy, and a day dreamer. Nobody thought I would amount to much. Childhood was hard for me, picked on, ridiculed, and generally tormented for being different. So I focused on being really good at whatever I chose to pursue. I wanted to show them (them being everyone/everywhere).

I built my own little photo lab in my basement, with used cameras, developing tanks, and an old enlarger. I put on magic shows, I even performed for Mayor Beame and the democratic party back in the day. I invented a magic trick that was published by Tannen's (one of the oldest magic shops in NYC) at the age of 14. Lastly, I competed in powerlifting, eventually coming in 3rd place in New York State in 1980.

I am still on my quest for mastery. I am committed to traveling whatever distance, paying whatever price, and doing what it takes in time, energy, and money to be the best I can . . . This time, at DWI defense mastery. I follow the same SUCCESS formula every time:

1. find and go to seminars, people, and events that I can learn from.

2. find and buy books, tapes, and dvds to learn from.

3. organize and spend part of everyday (or almost every day) reading/listening/writing

4. commit to mastering each part and area of the subject

5. pay the price for success, in time, money, and energy

6. accept and learn from my mistakes and rejections

7. work hard at preparing for all of my challenges.

This year I attended and participated in 10 seminars:

January 2010: Gerry Spence Trial Lawyers College: Opening Statement, Asilomar, California

February 2010: Gerry Spence Trial Lawyers College: Direct Examination, Round Top, Texas

March 2010: Gerry Spence Trial Lawyers College: Closing Argument, Leavenworth, Washington

April 2010: Texas Criminal Defense Lawyers Forensic Science for DWI New Orleans, LA

June 2010: Gerry Spence Trial Lawyers College: Psychodrama, Dubois, WY

June 2010: New York Criminal Defense Lawyers NY DWI Update, Wayne, New York

October 2010: New York State Bar Assoc. Expert Witness Seminar, Syracuse, New York

October 2010: New York Criminal Defense Lawyers DWI Update, Syracuse, New York

October 2010: The Breakthrough Experience, Self Mastery Program, Boston, Mass.

November 2010: Texas Criminal Defense Lawyers, Advanced DWI Seminar, San Antonio, Texas

7 states, 10 seminars, and one incredible year. I won't even begin to tell you the number of books, dvds, and cds I have purchased on criminal law, and DWI defense. Suffice it to say I have quite a library (my resources).

I believe "You" are always your greatest investment. A great many companies, organizations, and businesses spend millions on advertising/marketing for clients/customers.

If only they spent that time, energy, and money on their product or service. People sometimes ask me How I "Get" Clients. So many people are only interested (primarily interested to be fair) in the bottom line.

In my opinion these companies do not:

Panera's Bread, Starbucks, Dunkin Donuts, Apple, Wegman's, . . . Great bread, coffee, computers, and service . . . looking towards the future, innovating, transforming . . .

They "Focus" on being better, rendering a better product, a better service, not on a gimmick, or selling a fantasy to people.

As to me . . . Well, I not interested in retiring, why would I? I love what I do (contributing and serving as an attorney), I care about doing a great job (the best with the facts/case in front of me), I love learning, growing, and transforming my self and my business with new ideas,

so as 2010 comes to a close I look forward to re-grouping to do more (quality not cases) in 2011.

Modus Operandi Exception to Molineux Has Limits

In People v Stubbs (2010 NY Slip Op 08485 [4th Dept 11/19/10]) the Appellate Division, Fourth Department held that the trial court erred in admitting evidence with respect to a prior robbery committed a prior attempted robbery committed by defendant. This evidence had been admitted to establish the identity of defendant based on his modus operandi (see generally People v Molineux, 168 NY 264, 293-294, 313-317). In reversing, the Court explained that

defendant’s method of committing the prior crimes, i.e., traveling to
a retail establishment as a passenger in a motor vehicle and threatening the cashier at that establishment with the use of a nonexistent gun, “was not ‘sufficiently unique to be probative on the issue of identity’ ” (People v Pittman, 49 AD3d 1166, 1167, quoting People v Beam, 57 NY2d 241, 252). Although the prior crimes and the robbery at issue herein were similar to the extent that they were committed on the same road, albeit in different political subdivisions, that fact alone does not render the modus operandi unique. As the Court of Appeals has held, “ ‘the naked similarity of . . . crimes proves nothing’ ” (People v Robinson, 68 NY2d 541, 549, quoting Molineux, 168 NY at 316). In addition, we conclude that the prejudicial effect of the evidence concerning the prior crimes outweighed its probative value (see generally People v Hudy, 73 NY2d 40, 55, abrogated on other grounds by Carmell v Texas, 529 US 513).

When Must A Defendant Be Given the Right to Withdraw a Plea Before a Higher Sentence Than Bargained for May Be Imposed?

The appellant in in People v Magliocco (2010 NY Slip Op 08471 [4th Dept 11/19/10]) urged that where the court below had informed defendant during the plea proceeding that it would not be obligated to impose the promised sentence, pending its review of the presentence report, and at sentencing the court informed defendant that it was enhancing the sentence based upon that review" the court had "erred in imposing an enhanced sentence without affording him an opportunity to withdraw his plea."

The Appellate Division, Fourth Department, rejected the argument that the defendant had to be given an opportunity to withdraw his plea before the court could enhance the sentence, not for a violation of a condition of the plea, but upon review of the PSI report. First, the Court held that by "failing to object to the enhanced sentence or to move to vacate his plea, defendant failed to preserve his contention for our review." That isn't unusual or the reason for this posting. It is the next sentence in the decision, however, that is an eyeopener: "In any event, "there was no need for [the court] to afford defendant an opportunity" to withdraw the plea before imposing an enhanced sentence inasmuch as the court was not bound by the plea promise upon reviewing the presentence report (People v Figgins, 87 NY2d 840, 841)."

In People v Figgins (87 NY2d 840 [1995]) the Court of Appeals held that "Defendant's failure to appear in court on the scheduled sentencing date constituted a violation of the plea agreement. Therefore, Supreme Court was no longer bound by the plea promise and could properly impose an enhanced sentence."

The question is how does that holding that a defendant who violates a condition of a plea permits a court to impose a higher sentence without affording defendant a chance to withdraw the plea applicable to the issue presented in Magliocco in which the defendant was not alleged to have violated a condition of the plea.

Long ago, in People v Selikoff (35 NY2d 227 [1974]) the Court of Appeals, after noting that "any sentence ‘promise’ at the time of plea is, as a matter of law and strong public policy, conditioned upon its being lawful and appropriate in light of the subsequent presentence report" held hat if upon reviewing a PSI report and learning more about the crime and the defendant the court felt that a greater sentence than promised, the defendant is "entitled to receive" an opportunity to withdraw the plea "since the foundation for the plea, regardless of fault, had proven to be without substance" One wonder how can one reconcile this holding of the Court of Appeals with that of the Fourth Department in Magliocco. One also wonders if 95 percent of all defendants will continue to enter guilty pleas if the court are not bound by their sentence promise and the defendants cannot withdraw their pleas if a higher sentence is imposed than set forth in the plea bargain.

Senate passes new legislation banning "crush videos"

On Friday, November 19, 2010 the US Senate passed legislation which will ban "crush videos" or fetish videos which depict the killing of small animals, which typically depict a woman, often barefoot or in heels stomping animals to death.
The bill is in response to a US Supreme Court decision handed down earlier this year which removed a prior ban enacted in 1999. The legislation will now go to the White House for President Obama's signature.

Labaton Sucharow - The $403 An Hour Temps

"Dear Tom,

There was a hearing on Monday November 15, 2010 before a federal judge regarding the payment of attorney fees to Labaton Sucharow in the infamous Countrywide project. Please see the article below regarding Labatoilet's use of 119 'short-term attorneys,' better known as temps. We worked directly for this sheister in sweatshop conditions for a measly $32 an hour, with no time and a half and no medical or any kind of regular employee benefits. Now, Labatoilet apparently expects Judge Pfaelzer to approve paying them $403 per hour for our document review services. And of course Labatoilet gets a paid opinion from some bozo mediator named Diamond that states it is 'an extremely reasonable rate.' Well, it does not seem reasonable to me that you pay somebody $32 an hour and then turn around and charge $403 for that person's work. I wonder if the NYS pension funds and Judge Pfaelzer consider this a fair margin of profit.

If you think this is egregious billing and wish to make your feelings known, here is the contact information for the judge: According to the court's website, The best way to contact the judge's courtroom deputy clerk is by calling 213-894-5286; if the clerk does not answer the phone, be sure to leave a voice-mail message.

Hon. Mariana R. Pfaelzer
Court Clerk: Cynthia Salyer
Al Courtroom No.: 12
Telephone: 213-894-5286"

http://www.law.com/jsp/article.jsp?id=1202473741442

Albany Judge rules in favor of disclosure of State documents related to animal research

In a decision issued this week, New York State's Office of Mental Health must turn over documents that detail taxpayer-funded experiments conducted on monkeys and other non-human primates for substance abuse research, ruled Judge Richard Platkin.

The state attempted to prevent the document's release under the Freedom of Information Act which was filed by Physicians for Responsible Medicine, stating that the scientists who performed the studies may be targeted by animal-rights terrorists if the details of their experiments were disclosed.

Justice Platkin was not convinced.

Many of the documents sought involved experiments involving inducing monkeys to have drug and alcohol addictions, and then testing whether various medications broke those addictions.

In its court filing the state argued that "the well-documented, increasingly frequent threats and acts of violence directed by militant animal rights extremists at research facilities and individual researchers who are engaged in research using animal subjects" was evidence that the information should not be made public.

Platkin's decision stated that "State government routinely engages in activities that some individuals might find objectionable or inflammatory, but OMH can point to no precedent for insulating the work of New York State government from public scrutiny on the basis that disclosure could upset or incite those who lack respect for the rule of the law."

Andrew Cuomo, Albany, And Lobbyists - Village Voice

I have a question: can an investigation into criminal fraud start before a newly-elected governor takes his seat?
Full disclosure: I worked with Hank Sheinkopf from January 3 - August 13, 2007, answering his telephone, writing press releases, and arranging meetings. I was researching the court corruption that I write about on this blog, because Hank ran the election campaigns for the judges - Surrogate Renee Roth, Nora Anderson, and Supreme Court Judge Karla Moskowitz, among others - who stole my mother's property from me after she died. Hank also met with Andrew Cuomo in order to help Karl O'Farrell get his company Capital Play the Aqueduct Casino deal.

Betsy Combier

Andrew Cuomo Goes to Albany, Where Lobbyists Are Waiting

By Wayne Barrett Wednesday, Nov 10 2010
LINK

As often as we hear how imperative it is “to change the culture of Albany,” the language of reform camouflages the enemy. A mercenary class of elite lobbyists is at the heart of every state scandal, and nothing will change in New York until their death grip is broken.

Amorphous critiques of the “way things are done” in Albany do not describe what’s killing the state. It’s real people, an encrusted caste of 6584 registered lobbyists now awaiting the Albany arrival of Andrew Cuomo. He will either find a way to isolate and disarm them, or he will succumb to their charms, favoring one lobbyist or another until his government, too, is perceived as theirs.

This gang, especially the top hundred heavy hitters, lives by a code of cult-like indifference to the common good—selling relationships with seduced decisionmakers for four-five-and even six-figure monthly fees. They put a pricetag on every hello. They cobble contributions. They push interests as if they are beliefs. They are as likely to be retained to make something go away as they are to make it happen. They engage, ingratiate, invest and convert, carrying the state, one compromising deal at a time, towards fiscal oblivion.

The shadows are their office. They recruit by whisper. As covert as they prefer to be, filing disclosure forms that conceal, they rationalize themselves as necessary intermediaries, the glue of a disjointed government. It’s a proselytizing mantra that covers the capital in alibis and allegories.

Albany’s lobbyists are, of course, no different than lobbyists elsewhere. That doesn’t make them any more compatible with the public good. And with twice as many lobbyists per legislator as the second highest state, they have become the permanent government of New York, like black crows circling the iconic green Capitol dome. The scandals they spark routinely change all the players but them. We are watching that cycle again, as almost every tarnished power center other than the Assembly Democrats, that ultimate bastion of lobbyist collusion, switches hands.

In this season of chilling revelation and electoral tumult, the primetime lobbyists appear set to remain as Albany’s most enduring fixture, with a change in revenue rankings but a roster nonetheless largely intact--altered only by the winks and nods among fresh insiders.

This is a memo to Cuomo. If he doesn’t take dramatic executive order action in his early days as governor to blunt the sway of lobbyists, they will chip away at his credibility, and voters will come to believe over time that all that has changed are the names of the ins and the outs. He can finance his next campaign without them. He can’t restore public faith in state government with them.

A pecking order of the caste closest to Cuomo has already emerged.

Members of governor hopeful Andrew Cuomo's inner circle include Jennifer Cunningham (top left), father Mario Cuomo (top right), Benjamin Lawsky (bottom left) and Steven Cohen (bottom right).

John Marino, who chaired the state party for five years under Mario Cuomo and ran three of his campaigns, launched a government affairs unit at his public relations firm, Dan Klores Communications (DKC), last September. It’s run by Allison Lee, the wife of Congressman Maurice Hinchey and a former aide to Andrew in his days at HUD under President Clinton. When Cuomo was nominated for governor at the state party convention this May, it was Marino who introduced him .

The founder of the firm, Dan Klores, is so close to Andrew that they used to throw joint birthday parties. Klores, who says he’s sold his interest in the firm to Marino and other employees as part of a long-term “arrangement,” spends most of his time now producing plays and movies, but he was on the phone often in 2003, talking to reporters about Andrew’s breakup with Kerry Kennedy. He put $101,700 into Cuomo’s 2006 campaign for attorney general and supplied his campaign press secretary and first communications director in the AG’s office. Marino, Klores, Klores’ wife, and Lee have given $42,500 to Cuomo since January 2008, and their government affairs attracted 10 clients the day they opened, and a total of 27 clients since.

Marino tells the Voice that he “ain’t ever going to lobby the governor or anyone on the executive side,” promising to restructure the firm in such a way “as to not share in the profits” of the government affairs unit. Klores said much the same, indicating that under the terms of his sale, “I don’t have anything to gain” from the firm’s future lobbying income. That still leaves Lee and others at the firm with their own ties to Cuomo, as well as the allure of the big names at the top of the letterhead.

The interlocking history of DKC and Cuomo put it only half a step ahead of the woman who ran the 2006 campaign, Jennifer Cunningham, who is a partner with John Cordo, a former Republican senate staffer, in Cordo & Co. Cuomo and Cunningham differed over Eric Schneiderman during the primary, when Cunningham was running the campaign of her former husband and Cuomo wanted anyone but Schneiderman to win. But they ended up on the same page (and what a novel it is). Schneiderman’s stunning win, aided by Andrew, may cement the ties between these three over the coming years. Cunningham’s penultimate client is 1199 SEIU United Healthcare Workers, a union Cuomo is at loggerheads with regarding Medicaid costs.

The Cordo firm’s most recent filing with the state’s Public Integrity Commission lists Cunningham and Cordo as the new lobbyists for Genting, the Asian gaming company that won the scandal-ridden and extraordinarily lucrative Aqueduct casino contract. SKDKnickerbocker , a public relations firm where Cunningham also works, is now also handling press inquiries for Genting, an indication, perhaps, that the big spenders can smell the perfume.

Chris Del Giudice, the son of Mario Cuomo’s former secretary and Andrew’s current top policy adviser, Mike Del Giudice, recently joined Wilson Elser, the firm that always takes first place in the New York Public Interest Group’s annual revenue and campaign contribution rankings. So did Jerry Jennings, the son of Albany’s mayor, another reliable Cuomo ally. Wilson Elser, which hosted two receptions for Cuomo since 2008 and gave $68,856 to him, did an intimate fundraiser for him last fall in the ninth-floor conference room at its Albany office. Then Cuomo went to the Fort Orange Club, the gothic, wood-paneled, male-and-pale deal mausoleum, where he was introduced by the senior Jennings to an overflowing crowd of handlers and wirepullers.

In fact, it’s stunning how many leftovers from the Mario days are lobbyists and major Andrew donors now—Tonio Burgos, Jerry Weiss, Rick Ostroff, Pat Brown and his partner, David Weinraub. James Featherstonhaugh, the legendary 66-year-old dean of Albany lobbyists who represented Mario Cuomo personally in civil litigation, and was subsequently represented by Mario’s law firm, has taken on an Andrew aide, Frank Hoare, as a new partner. Burgos was Mario’s appointments secretary, and Weiss created the law firm Andrew ended up joining. Brown was a highly respected senior counsel to Mario Cuomo for many years. Weinraub and Ostroff, now at competing lobbying firms, ran intergovernmental affairs for Mario. This pack from the past combined to donate $213,080 to Andrew’s coffers since 2008.

Charlie King, the former top aide to Andrew at HUD who took a leave from his own two small lobbying outfits to serve as Cuomo’s executive director of the state party during this campaign, may return to his companies or to Bolton St. John’s, one of the state’s premier firms where he once worked. King was Andrew’s running mate in his failed 2002 bid for governor, and partnered for years with Al Sharpton, who has functioned as a lobbyist in David Paterson’s Albany without registering as one, collecting hundreds of thousands in state-connected donations to the National Action Network that he and King ran. King is a Cuomo and Sharpton loyalist, well positioned to become one of Albany’s most significant minority lobbyists.

The other “Al,” former Republican senator Al D’Amato, has tried to position himself as a key Cuomo ally, denouncing Carl Paladino as “not fit” to serve at the outset of the general election campaign. D’Amato sees himself as the kingmaker in picking the next GOP state chair after the election, and as an intermediary between Cuomo and the new Senate Republican majority. He hung on to his Republican credentials by loudly championing Dan Donovan, the party’s losing candidate for attorney general, even as he embraced Cuomo and Kirsten Gillibrand, the Democratic senator whose father, Doug Rutnik, is an Albany lobbyist himself and a longtime D’Amato and Featherstonhaugh sidekick.

D’Amato recruited former Staten Island Congressman Vito Fossella as a new partner in his Park Strategies lobbying firm at the same time that Fossella was featuring Paladino, rather than Rick Lazio, at a pre-primary rally in Staten Island against the so-called Ground Zero mosque. That September 11 appearance, combined with the timing of D’Amato’s post-primary denunciations of Paladino, may be the best indicators that Cuomo wanted to face Paladino, a deck D’Amato helped stack.

When D’Amato was in the senate and was the state’s official top Republican, and Mario Cuomo was the state’s top Democrat, the two had what Senator Patrick Moynihan called “a nonaggression pact,” with D’Amato serving up weak Republican challengers for governor in 1986 and 1990. As the unofficial leader of the party now, whose connections help bankroll it, D’Amato may hope to use that leverage to establish a similar tie to the son.

The D’Amato firm’s stable of prominent Republicans includes the son of Congressman Peter King (a potential formidable Cuomo opponent), the ex- Erie County executive Joel Giambra, and Fossella, whose career was undercut by the DUI-related revelations of a second, Washington-area, family. While D’Amato, who was once famously paid $500,000 for a single call to a state official, is not listed as a Cuomo donor. But his partners gave $9000, and D’Amato hosted a Cuomo fundraiser. D’Amato has also long been closely tied to another lobbying firm, Mercury Public Affairs, and one of its principals, Michael McKeon, ran Cuomo’s outreach effort to Republicans.

Mel Miller, the former Democratic Assembly speaker, recently joined D’Amato’s firm as special counsel. Miller sold his firm, Bolton St. John’s, to the staff a couple of years ago. He’d already established a strong D’Amato relationship by recruiting Armand D’Amato, the senator’s brother, as Bolton’s general counsel years earlier. Armand left Bolton to join Park Strategies in 2004, and now the D’Amatos have returned the favor.

Who cares that the Senate Ethics Committee found in 1991 that Al D’Amato had allowed his lobbyist brother to use his office stationery to solicit multimillion- dollar Navy contracts for a client? Who cares that Miller and Armand were convicted in unrelated federal trials in the 1990s, only to have their convictions overturned on appeal? In Albany, overturned convictions can be selling points.

In the days immediately following Miller’s 1991 conviction and automatic expulsion from the assembly, he told reporters that he was moving on to a new phase in his life and didn’t expect to do jail time for stealing $300,000 from his law clients. “Maybe I’ll make some real money now,” the then 52-year-old Miller said. Having spent a lifetime watching other lobbyists at the Albany trough, Miller’s on-the-mark prediction hardly made him a prophet.

Cuomo will be inaugurated on the darkest of Albany days, and it’s not just the budget that’s broken.

Three scandals as large as any in my lifetime haunt the capital, and each is a tale of lobbyists at their venal labor.

Republicans may have just retaken the state senate, even though their longtime majority leader, Joe Bruno, was convicted of federal felonies less than a year ago. If the GOP won, they did so, in part, by hanging a new, lobbyist-laden, scandal--the award of the $3 billion, 30-year racino franchise at Aqueduct--around the necks of Bruno’s Democratic successors, Malcolm Smith and John Sampson.

Bruno was caught mimicking the lobbyists that owned him, taking $3.2 million in “consultant” fees to steer union pension and state funds to his clients, though the media subordinated his proven criminal enterprise this fall to fresher Aqueduct headlines about still-unproven Democratic offenses. As tawdry as Smith and Sampson appear in the Aqueduct saga, they are boy scouts compared to Bruno, whose trial record depicted a breathtaking criminal enterprise.

One former counsel to Bruno, Kenneth Riddett, testified that he instructed GOP senators to have their financial disclosure forms hand-delivered to the ethics commission as a way of avoiding federal mail fraud statutes. By the time he testified, Riddett had his own lobbying shop, starting off with the Trial Lawyers Association, a Democratic stronghold in search of a Republican ally. It has long been legend that the GOP senate, much like Tom Delay’s House, pointed petitioners at their door to designated lobbyists, like a setter aiming its muzzle at game.

Lobbyists like Featherstonhaugh also made appearances on the witness stand. “Feathers,” as he is called, never bothers to dust a story up. He sees nothing wrong with being in a real estate partnership with the Senate leader he lobbies, Joe Bruno, or his brother Peter, or representing the Bruno family business, or doing a land deal with Bruno’s son, Kenny, or hiring Kenny as a lobbyist in his firm. (Kenny Bruno went on to Wilson Elser and then to his own lobbying firm, where he was clearing $50,000 a month.)

Feathers testified that he introduced the senator to a partner in a local investment firm because the businessman “wanted to see if he could enter into some kind of relationship” with Bruno, which he did, retaining the senator as a “consultant.” Then Feathers’s friend introduced Bruno to another businessman, who also retained him, giving birth to the business that ultimately convicted Bruno. Lobbyist John Cordo, who once worked for Feathers and was treated “like a son” by Bruno, also testified, confirming that a pivotal bill he handled granting correction officers some of the same pension benefits as police officers and firefighters was only passed after the correction union invested in a Bruno-tied investment firm, though he claimed he didn’t know Bruno was a consultant to the firm.

“I would see Joe socially,” Feathers recalled, unconsciously defining the art of the Albany schmooze. “He would talk primarily about his back swing and what trail he was going to ski. Those were our two big conversations.” Feathers wasn’t shy about saying what bored Bruno, either, simultaneously debunking the “three-in-a-room” decision-making legend, insisting that it was more like six-to-seven in a room, counting counsels.

Bruno didn’t testify, saving his long-winded declaration of innocence for the sentencing judge in May. “How dare anyone say I’m not worth $20,000 a month?” the lobbyist senator wailed, incensed by the testimony of one client who said Bruno did no work. “I know consultants that get paid $50,000 a month for doing what I was doing.”

It is a bipartisan whine, with Bruno echoing a Democratic assemblyman, Anthony Seminerio, who was convicted, like Bruno, of lobbyist envy. “I was doing favors for these sons of bitches there,” Seminerio told another convicted assemblyman in a secretly taped conversation. “They were making thousands.” So, said Seminerio, he decided, “Screw you—from now on, I’m the consultant.” Bruno explained, without a clause of contrition at his sentencing hearing: “I watched people on the outside who had been in leadership positions earning millions of dollars a year.”

So he tried it from the inside. A month after he stepped down from the senate in 2008, and shortly before he was indicted, Joe Bruno, 80, registered as a lobbyist for CMA Consulting, a company run by the widow of a former state senator with tens of millions in state contracts. It was not a late second career.

“I looked at what’s going on up on that hill,” said U.S. District Court Judge Gary Sharpe as he sentenced Bruno to two years in prison, “and I just shook my head.”

Inspector General Joseph Fisch’s 308-page report, released a week before election day, focused on “the locusts of lobbyists” that “descended on” Senate Democratic leaders to win the Aqueduct contract, the largest in state history. The report only briefly notes that it was Bruno who insisted that the franchise be awarded like none other, empowering the two legislative leaders to exercise executive power and pick the winner, together with the governor.

Leave it to Feathers to attest to what the IG report said was a “common sentiment.” He testified that the unusual arrangement “came from my friend Joe Bruno’s insistence,” tied no doubt to the fact that Bruno’s son Kenny was representing Capital Play, an early bidder that evolved into Aqueduct Entertainment Group (AEG). Feathers himself was a principal in another bidder that won the contract in late 2008, shortly after Bruno resigned as leader, only to forfeit it when Feathers’s partners couldn’t come up with the upfront multimillion-dollar fee it agreed to pay. The majority leader was acting again as a lobbyist, this time for the horseracing interests he was so identified with, starting with his own son and Feathers.

Fisch told the Voice that the awarding of this contract to AEG was “a tribute to the unbridled power of lobbyists.” While AEG competitors, said Fisch, “had the financial resources, experience and the support of the licensing and financial professionals, AEG had the right lobbyists.” That, he concludes, “proved to be all they needed.”

Hank Sheinkopf

Two of the lobbyists accused in the IG report of fixing the Democratic senate - Carl Andrews and Hank Sheinkopf - flouted the probe, with Andrews unsuccessfully suing to block subpoenas and appealing right up to the report’s release, and Sheinkopf taking the fifth amendment. Incredibly, their refusal to cooperate with a state probe of the award of one state contract has no effect on their ability to seek another. There are no qualifications or standards for this job, and you can keep it even if the state’s Public Integrity Commission (PIC) finds that you violated the lobbying laws. All you have to do is find a client willing to pay you.

Andrews hosted a victory dinner in his Brooklyn house right after AEG won the bid, and Smith and Sampson and five other legislators, including Manhattan county leader Keith Wright, joined company brass at an event Andrews invoiced for $1,562. The night before Governor Paterson announced the award, Andrews and AEG executives lit a victory cigar at the Havana Club with Al Sharpton, whose NAN had just collected $100,000 in AEG contributions, ostensibly tied to their belief that the Rev was whispering to Paterson on their behalf. A former state senator himself, Andrews held a top executive title in the Spitzer and Paterson administrations until a scandal about his apparent efforts to influence a decision of the State Liquor Authority forced him from office (the IG eventually concluded that Andrews’ top aide had to be fired).

But, like Mel Miller and others in Albany, Andrews has found that scandal can be a stepping stone, prospering even after his mentor, Brooklyn Democratic boss and assemblyman Clarence Norman, was convicted in three separate felony cases. Andrews attracted clients like AEG from the moment he threw up a shingle in 2009, also recruiting A.L. Eastmond & Sons, the Bronx boiler firm that allegedly paid City Councilman Larry Seabrook $50,000 to rig a Yankee Stadium subcontract. He also represents the Marcus Garvey Nursing Home, a much-probed, state-supported, Brooklyn residence that remained the biggest giver to Norman’s re-election committee in 2009, four years after he surrendered his assembly post.

Charged by the IG with getting a confidential senate memo from Sampson and playing a key role in tilting Sampson in AEG’s direction, Andrews’ relationship with Sampson is described by the IG as “a wellspring of ethical issues.” E-mails from AEG executives revealed that a day after Andrews got the secret memo comparing bids, they decided to boost his monthly stipend by $2,500 to $10,000, calling him “our most important” of seven lobbyists. But they also decided to pay him only half of the amount he was due right away. “By delaying payment #2,” one executive wrote, referring to a second $10,000 stipend, “he can’t release the senate.” It is such a statement of perceived power that Andrews, who has survived so many grand juries he may think they’re grand, is apparently trying again to wait out this storm as well and perhaps turn the findings into a flyer for his services.

Sheinkopf copped a memo, too, obtaining it from an aide to the top Senate staffer, Angelo Aponte, who Sheinkopf personally installed in the key spot. He had the power to do that because the skillful Sheinkopf doubles as a lobbyist and as a political consultant, and had advised Senate Democrats in the elections that led to the 2008 majority, helping to make Malcolm Smith majority leader. Sheinkopf collected $356,741 in consulting fees from the Senate Democratic Campaign Committee at the same time that he was representing AEG and its precursor with Senate Democrats. Having worked for Bill Thompson and Mike Bloomberg most recently, Sheinkopf makes kings so he can then make deals with the kings he’s made. He became a regular on CNN over recent years, appearing as an expert so often he started to believe he was one.

More than 20 years ago, Sheinkopf handled the first successful campaign for Rob Johnson, who is still the Bronx District Attorney. Johnson beat Phil Foglia, the author of the IG report, after a top Foglia associate reportedly tried, unsuccessfully, to get Sheinkopf to do Foglia’s campaign. That may make this report the first time Sheinkopf’s two hats have, over time, become too many to wear, especially when caught in a headwind like AEG. Fisch, oddly, recused himself on this investigation because of his ties to Paterson, who participated in the AEG selection, but took center stage at the press conference unveiling it-an unusual combination.

Foglia, who is so Republican he was picked in 2007 to be the Bronx party’s commissioner on the NYC Board of Elections, has failed in a couple of electoral runs, but his well-timed report may have delivered the GOP its biggest 2010 win. Foglia told the Voice that his BOE nomination was “stalled by politics” and that he “became a Republican in the late 90s,” running as one for City Council in 2005. The Foglia ties suggest that even a report that gets the Democratic Senate side of a scandal right can, by going light on Senate Republicans and Assembly Democrats, still be a well-timed partisan contract in Albany.

The report quotes another AEG lobbyist, the ubiquitous Cordo, as defending the illicit receipt of the two memos: “All I care about is the information, not where it came from.” His reasoning? “This is lobbying,” he explained, which the IG concluded was a clear statement of why lobbyists were “antithetical to an objective procurement” process, unconcerned about rigging it.

Also prominent in orchestrating the award were Bolton St. John’s and two other lobbyists closely associated with Sheinkopf--Norman Levy, who was Sheinkopf’s best man AT his wedding, and Stanley Schlein, a fixer tied to the one-man Senate crime wave, Pedro Espada, who was fined $15,000 in 2008 by the city’s Conflict of Interests Board. Schlein told the AEG he didn’t register as an AEG lobbyist because he was functioning as their counsel, though, said the report, “others testified that he played a role as a lobbyist.”

Manhattan U.S. Attorney Preet Bharara has been investigating the aqueduct deal all year, as he has the simultaneous $50 million voting machine contract awarded by the city election board to a company, Election Systems & Software (ES&S), also represented by Sheinkopf and Levy. NYPIRG listings showed that Sheinkopf had the third largest increase in compensation between 2008 and 2009, while Levy was ninth.

Schlein was on the opposite side of the voting machine competition, representing the losing company that’s now suing. One source said Schlein was working with John Haggerty, the Republican consultant under indictment for stealing a million in campaign funds from Mayor Bloomberg and a recent top aide to Carl Paladino. Haggerty, who was said to have periodically appeared at the board, did not file as a lobbyist on the deal.

A lobbyist working with Sheinkopf and Levy for ES&S, Anthony Mangone, was arrested by the feds on unrelated bribery charges the day after the January board decision. Jay Savino, the Bronx Republican county leader who nominated Foglia to be the party’s commissioner on the Board of Elections, shares an office suite with Mangone and has already been subpoenaed in the case, just one more way these incestuous circles swirl. Foglia says his relationship with Savino is “cordial.”

Cuomo learned firsthand how pernicious the Albany lobbying game is with his investigation of the other great scandal of the past four years—the looting of the state’s pension fund. Some of the same lobbyists that are tied to AEG made appearances in this clammy chronicle as well.

Norman Levy “received a half-million dollars” in 2006 payments from Bill Howell, a major pension fund placement agent, and “appeared sometimes to be Howell’s partner” in controversial deals with the fund, according to a source familiar with the transactions. Investigators concluded that they were splitting fees, and not disclosing it. The payments to Levy - whose conviction for running a parking-ticket-fixing-scam decades ago was also overturned on appeal - were allegedly tied to his introduction of Howell to a principal of Global Strategies, a consulting firm whose client, Intermedia, was seeking millions in city and state pension fund investments. Howell made the placements and shared the fees with Levy, who appeared to be listed as an employee of one Howell entity. Sheinkopf received payments from Levy shortly after Levy was paid by Howell.

Howell also paid former Liberal Party boss and notoriously influential lobbyist Ray Harding another half-million. Unlike Howell and Levy, Harding was indicted on charges associated with these and other payments. In his guilty plea, Harding refers to the payments Howell made to him and concedes he did nothing to earn them.

The comptroller at the time, Alan Hevesi, just pled guilty to taking a million in bribes from Markstone Capital Partners, one of the companies that looted the fund, and $380,000 of that total took the form of a fee paid to Frank Sanzillo, a lobbyist whose brother was Hevesi’s top deputy. The fee was funneled through Hank Morris, the lynchpin of the pension racket. Hevesi’s only attempt at an explanation for steering the payments to Sanzillo is that he was “a political supporter of mine.” Sanzillo, who has not been charged, is another of the AEG lobbyists named in the IG report, though he got out quickly after a two-month retainer. He and Carl Andrews share several clients and are listed as pitching in together when the Senate Democrats buy golf balls for their outing.

Other lobbyists like onetime Bronx assemblyman Roberto Ramirez and former Republican assembly leader John Faso have also been implicated in the pension scandal. The only reason more haven’t been is because Hevesi - and his successor, Tom DiNapoli - decided to continue a policy that exempted lobbyists dealing with the fund from registering or filing as lobbyists. A memo that DiNapoli’s lawyers sent to the Public Integrity Commission in July 2009 distinguished the pension fund from other “governmental entities,” contending it was not “a state asset” and thus not subject to state procurement policies, including those regulating lobbyists. Hevesi took a similar position in 2002, shortly after he was elected.

More disclosure and tighter reins won’t begin to break the cult. Andrew Cuomo has to move in a wholly new direction, creating an office of lobbying relations that will become the only passageway onto his second floor for lobbying information, which is sometimes informed and helpful. This filter will be staffed by technocrats who think of birds when they hear someone mention feathers. The unit will be staffed not on the basis of who they know, but who they don’t know. Once this ban on direct contacts with decisionmakers is extended to all state agencies, Cuomo may have set an example that the senate and assembly will have to emulate.

I ran this remedy past Blair Horner, the New York Public Interest Group lobbyist who is the ethics watchdog of Albany and once worked for Cuomo. Horner sees all kinds of practical difficulties, fearing “bottlenecks” and other “logistical questions,” but says “it could work.” He thinks it should be “tested out” in a pilot project.

Of course, the danger of anything piecemeal is that the Big Boys could set in motion a new pattern of Cuomo seduction before the wholesale innovation gets off the ground, and, thus, radical change would never occur. Feathers blasted the idea as “naïve,” and said “the generalists” Cuomo put in the unit “would know us all in two weeks.”

It’s not just the state that would be protected by erecting these walls. It’s Cuomo himself. If he falls into the get-along ways of the lobbying caste, just changing the seating arrangement at the head table, he will become the main course. And New York, the love of his family’s life, will sink deeper into its swamp of cynicism.

"Clutch Legal" Sleazy Outsourcing Outfit Cancels Another Project

Watch out for these guys. Projects fall through with them ALL the time. Their modus operandi seems to be that they set up sweatshops in India and have American contract attorneys serve as "back ups" in the initial set up stage. Smart solutions, no borders, indeed.

"It is with great disappointment and sincere apologies that I report to you that the Greenberg Taurig project is canceled. The case just settled this evening.

I am truly sorry for all the chaos and frustration surrounding this project. I had no idea the client was in settlement talks, so this is as much a surprise to me as it must be to you.

Thank you in advance for your understanding. My colleague Suzanne and I think very highly of you all, and I will make sure to keep you in mind and posted on all future assignments.

Please confirm you have received this email."

The Corruption of Andrew Cuomo Part 2: The Hevesi-Morris-DiNapoli Pension Scandal

Alan Hevesi

Alan Hevesi, former New York State Comptroller, and his colleague Hank Morris have been indicted for plundering the State pension fund for their own financial gain. One of the questions the public needs answered now is, who knew about this, and what did they do/not do to stop it? Why did newly elected Comptroller Tom DiNapoli suspend his agency's sole audit of the attorney general's office soon after launching it a year ago? DiNapoli spokesman Dennis Tompkins explained as follows: "We had a temporary shift in priorities."
From Betsy Combier:
Editor, parentadvocates.org
LINK

I pay taxes like anyone else, and yet have no expectation that public officials whom I am paying with my tax dollars are working to protect my best interests or that of my fellow taxpayers. I am baffled as to why New York State voters seem to enjoy putting corruption into the closet by buying papers such as The Daily News. (See The Corruption of Andrew Cuomo Part 1:The Aqueduct Racino Bidding Process)

Would someone please find out what Andrew Cuomo and Eliot Spitzer, New York State's former Attorney General, were doing while Alan Hevesi (also see the article below) and his people were stealing our pension funds? Tom DiNapoli was appointed to take Hevesi's place, and now has won election as the New York State Comptroller. He needs to answer this question as sole trustee for the $129 billion State pension fund, one of the largest institutional investors in the world.
Audit of Cuomo quickly put off
By CASEY SEILER State Editor, Times Union, Saturday, November 6, 2010
LINK

ALBANY -- Comptroller Tom DiNapoli's office suspended its sole audit of the attorney general's office almost immediately after launching it almost a year ago.

The audit of the attorney general's Civil Recoveries Bureau was, and remains, DiNapoli's only examination of Andrew Cuomo's office since the former assemblyman was appointed to the post in January 2007.

The audit was first reported by the Times Union a week after the customary "engagement letter" was sent to the attorney general's office in December 2009. The Civil Recoveries Bureau is assigned to recover money owed to state agencies through litigation.

"We issued the engagement letter, and shortly after that we suspended the field work," said DiNapoli spokesman Dennis Tompkins.

Asked to explain the reason behind the suspension, Tompkins said, "We had a temporary shift in priorities."

Tompkins would not respond when asked if the attorney general's office had requested the postponement of the audit, which would have been conducted during Cuomo's investigation of the pension fund scandal involving DiNapoli's predecessor, Alan Hevesi. The probe, which at the time was also examining DiNapoli's conduct in office, is ongoing.

"I can't comment on the investigation into the pension fund," Tompkins said.

The attorney general's office failed to answer a request for comment.

The initiation of the audit followed months of often cool relations between DiNapoli, who on Tuesday was elected to a full term, and Cuomo, now the governor-elect. As the pension fund investigation progressed through 2009, Cuomo became vocal about what he saw as the need to curtail the comptroller's "sole trustee" status over the $125 billion Common Retirement Fund. Cuomo has proposed the creation of a 13-member board of trustees including the comptroller as well as appointees of the governor, the attorney general and legislative leaders.

DiNapoli has remained resistant to what he sees as a reduction in the comptroller's constitutional powers that, he argues, could expose the fund to political moves.

Just after the letter announcing the audit was delivered, Tompkins dismissed the notion that the timing of the audit was due to anything other than the comptroller's obligation to conduct examinations across state government. "There is no ulterior motive," Tompkins said in December. " ... This is what we do."

Hevesi resigned in disgrace just weeks after winning re-election in 2006, and pleaded guilty last month to felony corruption after admitting that he had received more than $1 million in campaign cash and luxury trips in exchange for granting investment firms access to the pension fund. His longtime adviser Hank Morris decided to take a plea earlier this week.

Following Hevesi's guilty plea, Cuomo's spokesman took the unexpected step of issuing a statement saying that while matters involving DiNapoli had been examined, he was "not involved in any investigation or matter in this office."

That assurance was seen as a major boost to DiNapoli, whose Republican opponent Harry Wilson had attempted to tie the incumbent to Hevesi's misdeeds.

Tompkins insisted that despite the suspension of DiNapoli's only audit of the attorney general's office, the pension fund scandal doesn't limit the comptroller's fiscal oversight. He said the exam of the Civil Recoveries Bureau is still on the audit plan, although he couldn't say when it would resume. "I don't know the timing of it," Tompkins said.

Reach Seiler at 454-5619 or cseiler@timesunion.com.

Ex-Comptroller Alan Hevesi pleads guilty to felony, drops dime on former advisor
By FREDRIC U. DICKER in Albany and LAURA ITALIANO in New York
New York Post, October 7, 2010
LINK

Disgraced former state Comptroller Alan Hevesi pleaded guilty to a felony corruption charge today in connection with the huge pay-to-play state pension story -- even ratting out his former longtime political advisor Hank Morris for the first time -- that has rocked the office he once held.

Hevesi, a Democrat, was charged with the felony for receiving a reward for official misconduct in the second-degree.

READ HEVESI'S ALLOCUTION

READ THE CHARGES AGAINST HEVESI

"I deeply regret my conduct and sincerely and deeply apologize to the people of the state of New York." he told Manhattan Supreme Court Justice Lewis Stone, who will sentence him to as much as four years behind bars to as little as no jail time on Dec 16.

The plea deal includes his cooperating against remaining co-defendants, including Morris.

"Beginning in June 2003 through September 2005, I approved a series of Common Retirement Fund investments totaling $250 million in Markstone Capital Partners, a private equity fund managed by Elliott Broidy. In exercising my discretion as Comptroller to approve these deals, I gave preferential treatment to Markstone and Broidy, who was a friend of mine and political fundraiser for my campaign.

"I also sought to help Broidy in his efforts to market Markstone by encouraging other public pension funds to invest in Markstone," said Hevesi, who wore a black suit and looked somber throughout the proceeding.

Hevesi also surrendered his passport before the hearing, where the former city and state comptroller told the judge about his misdeeds in great detail.

"Broidy and I agreed that Broidy would pay for certain travel expenses on my behalf, and I was aware that Broidy concealed his payment of some of these expenses through the use of charitable organizations and false invoices submitted to the Office of the New York State Comptroller.

"On at least five occasions, between in or about April 2003 and in or about June 2006, I traveled to Israel, and on one occasion to Italy, with Broidy and certain high-ranking officials of the Office of the New York State Comptroller. Pursuant to our agreement, Broidy paid at least $75,000 in travel expenses incurred by myself, other Office of the New York State comptroller officials, and my adult children, in connection with these trips," Hevesi told the judge.

Attorney General Andrew Cuomo has been investigating Hevesi and several of his former top aides including Morris in connection with kickbacks that were paid by investment companies to gain access to the massive state pension retirement fund.

“Alan Hevesi presided over a culture of corruption and violated his oath as a public servant,” Cuomo said in a statement. “He was solely charged with protecting our pension fund, but he exploited it for his personal benefit instead. With his guilty plea, we can now focus on the process of restoring public trust in government."

Morris has been indicted on multiple felonies and several guilty pleas have already been entered including one by former state Liberal Party boss Raymond Harding, a longtime Hevesi friend and advisor.

"During my tenure, as I knew, my paid political adviser and campaign manager Henry 'Hank' Morris arranged for Broidy to enter into a sham consulting agreement with a lobbyist friend of Morris who was also a political supporter of mine pursuant to which Broidy paid or caused to be paid in excess of $380,000 to the lobbyist over a period of more than two years. Markstone, with my knowledge, failed to comply with its obligation to disclose to New York State Common Retirement Fund staff that these payments had been made in connection with the New York State Common Retirement Fund’s investment in Markstone," said Hevesi.

Hevesi resigned in December 2006 after pleading guilty to an unrelated felony charge.

Hevesi controlled the multibillion-dollar pension fund until his resignation when he admitted to using state workers to chauffeur around his wife.

Hevesi ended his remarks by saying that Morris "solicited contributions to my re-election campaign from those doing business with" the retirement fund.

I understood that during my tenure as comptroller, Morris was also a paid placement agent in connection with Common Retirement Fund investments, and that he steered Common Retirement Fund investments to friends and political associates," he said.

David Loglisci, chief investment officer of the state fund under Hevesi, pleaded guilty this past March to a violation of the state’s general business law.

Prosecutors said Loglisci, who has also agreed to cooperate with authorities, had allowed Morris to choose which money managers received alternative investments from the fund.

COMMENTS
Off Duty
10/08/2010 8:10 AM
When the F will New Yorkers wake up?

bobp1940
10/07/2010 7:54 PM
Another member of the main crime family in NYS "The DemocRAT Party" pleads guilty to crimes committed while in office. And yet the 'Soldiers" of the crime family will march into the voting booths and vote to put more "Capo's" into office.

Debbi64
10/07/2010 6:49 PM
Just wondering? If he's admitted to all these "kick backs" per se...where is the IRS looking for their fair share + interest and then returning everything except the interest????

Don't we all pay taxes?

Archie
10/07/2010 6:17 PM
Vote Republican !

Ex New Yorker
10/07/2010 4:30 PM
Andrew Cuomo stated "With his guilty plea, we can now focus on the process of restoring public trust in government." LMAO! These very same words have been uttered countless times since the days of Tammany Hall and NOTHING has changed! While both political parties are no angels, the Democrats really take the cake when it comes to corruption; witness NY, Chicago, Bell California etc. They wrote the freakin book on corruption, and NY'ers will continue voting for them because Democrats exist by rewarding mediocrity and placating unskilled workers with high paying jobs and benefits.

Bellona
10/07/2010 3:50 PM
What about his tennure as City comptroller? What went on there?

BillNYC
10/07/2010 1:48 PM
Put the bum in JAIL for the full FOUR YEARS, No Parole, No Early Release!

MaryLongIsland
10/07/2010 1:48 PM
RISE UP my fellow NY'ers...these are CORRUPT POLITICIANS FOR DECADES IN NY STATE...VOTE THESE BUMS OUT!!

THROW OUT PRINCE CUOMO on 11/2...NO MO CUOMO!!

These CLOWNS...Schumer, Silver, Gillibrand, Bloomberg,CUOMO, accidental Governor Patterson,Hevesi,Former disgraceful Gov Spitzer..Senate majority, Assembly majority, etc all are DEMOCRATS my friends! ...Robbing us BLIND for decades and they are PROUD of it!

Prince Cuomo total Fraud & Failure running HUD...$59 BILLION unaccounted for when an AUDIT was performed...

DON'T send CORRUPT CUOMO to Albany folks as he is the leader of DIRTY Politicians!!

MHRAorg
10/07/2010 1:41 PM
This is guy, Hevesi, is a slug. But he wasn't by himself. You mean to tell me his deputy didn't KNOW or SUSPECT what was going on. How does he get a pass on this?!!!

No More Mr Nice Guy!
10/07/2010 1:37 PM
HughMcs.........You are correct ! There is no mention of any mandatory jail time in his plea deal . They do however mention that he could do no time at all . There is also no mention of fines or the return of any of the loot . It does mention the name of one particular guy he is going to rat on . Morris will get the real punishment . Hevesi will be rewarded for his invaluable help to the prosecution , His good buddy , Cuomo

HughMcs
10/07/2010 1:07 PM
I think there is a "sweetheart deal" in the making. This prosecution is all about portraying "Prince Andrew" as a shining knight in armor. Everyone knows that he got a job with Clinton due to his father's political influence. Why weren't Hevesi's son's included in the indictment? Where is the investigation going? Have deals been made that if Cuomo gets elected will he give "pardons" to these political fat cats.

Queenskid
10/07/2010 12:45 PM
I sincerely hope this guy gets the kind of hard time he would were he not a white politician. Stick his old behind in Rikers and let those who enjoy older men have some fun.

kingtigertank
10/07/2010 12:44 PM
Jail is the appropriate sentence for this corrupt moneysucking parasite. As a previous poster stated, he only regrets getting caught. I seriously doubt he is is even shamed by his criminal behavior. Corrupt politicians of his ilk have done enormous damage to NYS. "Pay to play" is alive and well in New York and there are more Hevesis still out there that need to be caught.

Mimi
10/07/2010 12:30 PM
So what about Hevesi's two sons (Daniel, a former politician, and Andrew, a current politician)? Are they exempt from prosecution now? Why is Andrew allowed to remain in office?

LedZep
10/07/2010 12:27 PM
OK friends - what are the odds he gets no jail time?

I say there is a 80% chance he gets no jail time

LedZep
10/07/2010 12:25 PM
He states: "I deeply regret my conduct and sincerely and deeply apologize to the people of the state of New York."

He meant to say: "I deeply regret getting caught and I wish I was still in the position to screw the find the people of the state of New York."

WNYer
10/07/2010 12:12 PM
When is Cuomo going to be investigated?

Al Einstein
10/07/2010 11:48 AM
Thanks God we have mini-me mario to get tough on crooked politicians. He's goona be such a good governor...the timing couldn't be better for the little sfacim.

fred klein nassau cty ADA
10/07/2010 11:40 AM
karma every thing was good with all the shake downs until i got caught.while pretending to be a good law enforcement officer i was fired for being a gigantic liar and thief.while all along it was me and i put many innocent people in prison for my own greed and ego.i got caught up in my own judge and jury and hang man attitude.

stopcorruption
10/07/2010 11:38 AM
This state is amazing. Here you have this thief that has a history of corruption still working in public office. NYS socks the big one. We must leave this skithole.

outraged
10/07/2010 11:08 AM
more schemes more corruption it's everywhere just look at the nonprofits stealing like crazy..millions and they are perverts also. I read about the ceo of the leukemia and lymphoma society another child molestor

ne3pete
10/07/2010 11:02 AM
I wonder if he can play a race card like Rangel? oh..wait, he can play the "politician" card!

LiesLiesLiesLiesLies
10/07/2010 10:55 AM
A scrificial lamb for Cuomo's election year altar.

Try all the blood letting you want Andrew. Carl is gonna whoop your azz.

mingdurga
10/07/2010 10:51 AM
Messing around with state workers pension plans is a big NO NO Alan. Anything else is just par for the course of doing political business in NY or any other state. As long as nobody pulls a Michael Vick, you guys should just be fined and "leave" office. Exceptions are the Vito Lopez's and Pedro Espada's. They're just plain thieves and deserve jail time.

iheartdogs
10/07/2010 10:41 AM
I'm sure the government employees in charge of billions of taxpayer money used to run Obamacare will be just as honest, lol.

Toni
10/07/2010 10:16 AM
Another sad story of the state of our Governments Leaders. Are any of them honest?

newsreader
10/07/2010 10:03 AM
Hi Alan - remember when you came to Erie County in 2006 and pointed your finger at us and said "we needed adult supervision"?

Interesting how you insinuated that we should just shut up and raise taxes all the while you were padding your pockets and using state resources for your own personal use.

Ah... those must have been to good ol' days when your arrogance ran rampant. So... who needs "adult supervision now" ?

bonkers
10/07/2010 10:03 AM
xoxoxo

throwemallout
10/07/2010 9:55 AM
Another Democratic politician busted for corruption. Shocker!

dth2libbies returns
10/07/2010 9:49 AM
Liberals stealing from Liberals so what? NY will continue to vote for Demonrats anyway so what?

No More Mr Nice Guy!
10/07/2010 9:44 AM
If he is ready to cop-out already he must have plenty to hide , Including a very large stash of money . He must have cut a real nice deal for himself . The kind of deal where he wont do much time and returns very little . Im sure Cuomo took it easy on him . Jimmy Hoffa was convicted of committing the same crimes with the Teamsters pension fund . He lost everything and did 8 years in federal prison . Lets see what happens to this guy .

maggiev77
10/07/2010 9:40 AM
What's amazing is that there has not been any monitoring of State pension funds at all. Don't they get it. Here's the equation:

Any Politician+Power+Unmonitored Funds=Corruption

skiparoo
10/07/2010 9:33 AM
self serving thief. lock 'em all up, asap.

SuzannahTroy
10/07/2010 9:28 AM
Please explain to me why Hevesi and not Steve Rattner, Mike Bloomberg's money manager who pleaded the 5th to the SEC more times than Mike Bloomberg has been mayor? Why did someone finally get out the handcuffs but nothing is happening with the slush fund investigation at City Hall except tax payers' bills for top defense attorneys for Christine Quinn and staff are just getting bigger. In Ari Ronston's article in NYO he lays it out clearly that Bloomberg broke the law not declaring the money he wired to the Independence party and no one has the guts to apply the laws to Bloomberg the way I understand it. It sickens me that the rich and politically connected are above the law. Re: pensions - I have heard they have been grossly mishandled as well as exploited.

DMZ
10/07/2010 9:24 AM
SuperDopeFreakObama,
In case you haven't noticed, corruption runs rampant on BOTH sides of the aisle. The size and scope of the crimes supposedly committed by this politician are miniscule compared to what Obama's predecessor and HIS puppeteer Darth Vader pulled, AND GOT AWAY WITH!

Lou (bx67)
10/07/2010 9:14 AM
Yet another corrupt Democrat.

NYS is a real political sewer filled with Democrat sewer rats.

hojo
10/07/2010 9:11 AM
When this creep is being held on Rikers in General Population, then alert the public.Why isn't he going thru the same procedures as all others who are arrested. The double standard has become more blatant and brazen. What a shame.

SuperDopeFreakObama
10/07/2010 9:04 AM
Bookem Danno!

THE DEMS ARE CORRUPT, THEY HAVE BEEN STEALING FROM NY FOR DECADES.

NOV,2...MAKE IT STOP!!!

Joey in LI
10/07/2010 9:04 AM
@Magma, @Shy Dawn, how crooked a politician is simply depends on who's is in power. In 5, 10, maybe 15 years, when there's a different AG, I'm sure we'll see Cuomo in handcuffs. You can't be good at being a politician without being corrupt!

eatingdogfood
10/07/2010 9:01 AM
Another Corrupt Liberal DemoRat !!! Does anybody really believe that he will serve any Prison Time ??? Yes, he will be made to walk the "Perp Walk " !!! That's it !!! Then he goes home and continues to collect his hard earned NYS pension !!!

Magma
10/07/2010 9:00 AM
Please lock him up. Please.

Shy Dawn
10/07/2010 8:58 AM
Gee what a surprise, another crooked politician.

WNYer
10/07/2010 8:56 AM
The man needs to go to jail,Too many politicians getting caught with their hand in the cookie jar but, not going to jail. If you do the crime, do the time, period.

Barack_Mugabe
10/07/2010 8:51 AM
Ho hum. The Culture of Corruption rambles on.

DON'T GET FOOLED AGAIN!
10/07/2010 8:50 AM

From Betsy Combier:
oh yes, you might say, Andrew Cuomo is ripping apart the pay-to-play in Albany. Really? Giving the rooster the job of picking the hens in the hen house is ridiculous, dont you think? Who is investigating Andrew Cuomo?

Wait until you see how Andrew Cuomo fights his constituents in order to steal their property in his own pay-the-judges-to-play scheme. That's my next article in this very sad series on New York State's new Governor.

Everywhere a ripoff
Editorials
Saturday, April 17th 2010, 4:00 AM
LINK

Attorney General Andrew Cuomo's probe of corruption in the state pension fund makes it clearer than ever that Albany is a cesspool of pay-to-play politics.

Two investment firms and three lobbyists agreed to cough up a total of $17 million to the state, the pension fund and federal securities regulators to settle charges that they improperly wangled money from the $129 billion pension fund. Among the key players was President Obama's former car czar Steven Rattner.

The settlements were the flip side of criminal charges that Cuomo has pursued among the inner circle of former Controller Alan Hevesi.

One Hevesi top aide has pleaded guilty, and Hevesi's long-time political consultant Hank Morris stands indicted.

Foremost among the schemers, Morris pocketed tens of millions of dollars as a middleman in pension fund deals overseen by his pal.

It didn't matter whether you were a small startup firm or a seasoned money manager. If you wanted a piece of the pension fund, cutting Morris in on the action was the way to go.

Morris' lawyer brazenly admitted as much in a stunning response to Cuomo's indictment:

"It should come as a shock to no one that 'knowing people' matters, and that individuals with political connections frequently enjoy readier access to government decision-makers than do others."

Ain't that the truth?

When Los Angeles-based money manager GKM hired Morris in 2003, for example, it was a young company with $14 million in assets and "virtually no track record," Cuomo's office says. Morris worked his magic and - presto! - GKM was handling $800 million within two years.

Then there was Rattner, a top Wall Streeter who founded the Quadrangle Group.

When Rattner was angling to win Quadrangle a pension fund contract, he not only paid Morris a cool million but also helped finance "Chooch," a cheesy movie produced by the brother of a top pension fund official.

Cuomo's settlement further reveals that Morris leaned on Rattner to donate to Hevesi's campaign fund, and Rattner responded by hitting up a couple of friends to contribute $25,000 each.

His reward? A $150 million investment from the pension fund.

Quadrangle rebuked Rattner, saying his actions were "inappropriate, wrong and unethical."

Meanwhile, Hevesi's successor as controller, Tom DiNapoli says he has diligently cleaned up the mess he inherited. But at least one smelly deal transpired on DiNapoli's watch.

As the Daily News' Ken Lovett reported last year, DiNapoli more than tripled an investment with a firm called InterMedia after a meeting in his office brokered by lobbyist and former Bronx Democratic boss Roberto Ramirez.

Also apparently in the room was a partner with Global Strategies Group - a lobbying and political consulting firm well known for its high-profile clients, including Eliot Spitzer and Cuomo.

DiNapoli mewls that the confab took place before he changed the rules to ban middlemen and other pay-to-play practices.

So what? As Cuomo's investigation proves beyond a doubt, allowing lobbyists and fixers to come within 100 miles of the pension fund is a recipe for disaster.

DiNapoli shouldn't have needed rules to tell him that.

Mayor Bloomberg defends friend, car czar Steven Ratner, amid pension scandal probe

By Kathleen Lucadamo, DAILY NEWS CITY HALL BUREAU
Thursday, April 23rd 2009, 1:33 PM
LINK

Mayor Bloomberg defended his buddy Steven Rattner Thursday, saying he shouldn't give up his federal car czar post while investigators probe his firm's involvement in an exploding pension scandal.

"I can tell you going back a long ways with this guy, he is scrupulously honest and a great public servant," Bloomberg told reporters.

City ethics lawyers last year cleared the way for Rattner's Quadrangle group to manage the mayor's personal fortune and philanthropy assets year after Bloomberg asked for more flexibility in his investments.

The private-equity firm is being probed by State Attorney General Andrew Cuomo for paying fees to secure investments by the city pension funds without disclosing the fees.

Rattner has not been charged with any wrongdoing in the expanding probe, which also includes Quadrangle's role in pay-for-play involving the state pension fund.

Placement fees are legal unless companies are forced to pay a particular firm in exchange for business.

A top associate of Alan Hevesi, who served both as city and then state controller, has been indicted in the scandal.

That associate, Hank Morris, was employed by a firm that collected millions in placment fees.

Critics have called on Rattner to step down from his position as President Obama's pointperson to bailout the auto industry until the investigation is complete.

"From what I can tell and what the authorities have said...he and his company did nothing wrong," said Bloomberg.

"If that's the case, there would be no reason to deprive the country of a very smart guy who is willing to devote himself to public service," he added.

Bloomberg said the decision is ultimately up to the president, adding "I really shouldn't weigh in, he is a friend of mine."

The Obama team has so far backed Rattner, saying he hasn't been accused of wrongdoing and that he alerted them about the investigation.