Former Chief Judge Judith Kaye Finds Gov. Paterson Not Guilty of Breaking The Law

Basil Paterson


Of course our Governor cannot be charged with obstruction of justice, witness tampering, or anything like that... he is above the law, immune to prosecution, accountable for his actions only to dad, the Hon. Basil Paterson (David's brother Daniel works at the Office of Court Administration).




AG Report: Paterson Showed Bad Judgment, Did Not Break Law
By JONATHAN DIENST, Wed, Jul 28, 2010
LINK

Gov. David Paterson showed bad judgment but did not break the law when he contacted an alleged domestic violence victim, sources tell NBCNewYork, according to a new report released today by the Attorney General's office.

The report by special counsel Judith Kaye details the events surrounding the alleged abuse of Sherr-una Booker by Paterson's close aide, David Johnson. See a timeline of the events.

Read the report here.

The report suggests that the Bronx District attorney should move forward with a criminal investigation of David Johnson for the alleged domestic violence incident.

"The evidence reviewed warrants consideration of possible charges against David Johnson relating to the Oct. 31 incident," Judge Kaye writes in the report. But, she adds, no other criminal charges should be filed in the case.

It was last Halloween night when Johnson allegedly beat and choked Booker. Questions have swirled if Gov. Paterson Johnson and state police officials engaged in actions to try to silence her. Johnson denies any wrongdoing. The Governor admits calling Booker but has denied it was an attempt to intimidate her.

According to the report out today, Booker called 9-1-1 three times after the alleged assault. In the third call, she told the 9-1-1 operator that she was scared and feared Johnson might return to "finish the job." The NYPD patrol car was delayed in responding because it had to cover a car accident and a landlord-tenant dispute at the same time.

When officers arrived, they said the did not see any injuries, classified the incident as a 'harassment' violation and advised Booker to pursue the matter in family court. The NYPD report later erroneously stated Booker's complaint had been "unfounded" after a wrong code for the complaint was entered into the computer. Booker then went to Lincoln Hospital for treatment and to meet with a social worker on how to handle a domestic violence incident.

The report states that after Booker called 9-1-1 to report the alleged assault to the NYPD, Johnson called NY State Police Major Charles Day, of the Governor's security detail, to alert him of her allegations.

Day told investigators he received permission from First Superintendent Pedro Perez to call Booker to assess if an assault had occurred and whether Booker needed help. Perez also claimed he wanted to assess if Booker was a 'threat' to the Governor in that Booker might seek to "retaliate" against Johnson when he was with the Governor.

When Major Day called Booker, she said she was not all right and was very upset, according to the report.. Booker claims Major Day then urged her not to file charges against Johnson and instead leave it to the state police to handle internally. "Booker testified that, because she believed Day worked for Johnson, she suspected that Day was attempting to interfere with her efforts to obtain assistance from the NYPD," the report said.

Superintendent Perez did call the head of the State Police Henry Corbitt who later testified that he said Booker should be treated as a crime victim and that Day should reach out to her and "explain her options."

On January 7, Corbitt advised Deputy Secretary of Public Safety Denise O'Donnell about the incident, calling it an "argument" that resulted in a "domestic incident report," according to O'Donnell.

Booker, 41, came forward for the first time last week, saying that she wants to pursue criminal charges against Johnson. She met for several hours last week with domestic violence prosecutors at the Bronx District Attorney's office. Bronx DA Robert Johnson said he is investigating her claims, but hadn't yet decided whether to file criminal charges, according to his spokesman.

Booker, a single mother of two sons, said that she was inspired to go public with her claims due to other women who had suffered domestic violence, particularly a co-worker who stayed with a man who had broken her arm.

"She didn't speak out for years," said Booker. "And it kind of gave me the courage to come forth and speak for other women that maybe didn't feel that they would be heard, or weren't important enough to speak up. It's the right thing to do. I don't want any woman to go through what I went through."

The report said after Booker called 9-1-1 to report the alleged assault to the NYPD, Johnson called Major Charles Day of the Governor's security detail to alert him of her allegations. Day told investigators he received permission from First Superintendent Pedro Perez to call Booker to assess if an assault had occurred and whether Booker needed help. Perez also claimed he wanted to assess if Booker was a 'threat' to the Governor in that Booker might seek to 'retaliate' against Johnson when he was with the Governor.

When Major Day called Booker, she said she was not all right and was very upset. Booker claims Major Day then urged her not to file charges against Johnson and instead leave it to the state police to handle internally.

"Booker testified that, because she believed Day worked for Johnson, she suspected that Day was attempting to interfere with her efforts to obtain assistance from the NYPD," the report said.

Day denies Booker's claims.

After leaving the apartment and calling Major Day, Johnson also called friend Deneane Brown asking her to try to calm Booker down. He also called Governor aide Clemmie Harris who then called Brown to find out what was happening.

Harris said he first discussed the allegations Booker was making against Johnson with the Governor on November 2. That day, Booker went to family court to seek an order of protection stating she suffered bruises on her arms. She returned to court on Nov. 4 and followed the court's advise to have an order of protection sent via certified mail to Johnson.

According to the report, Booker says on November 3, Day tried to call her but a friend answered the phone: When he was told Booker planned to continue to move forward with the case, Day reportedly became "aggressive and rude." But Day denies asking about whether Booker planned to pursue the case.

Eventually, Booker told investigators she decided not to pursue the family court case because Johnson was no longer contacting her and she did not consider him a 'threat.' That according to the attorney general's report is why Booker did not follow-up at Family Court to pursue the matter.

But Booker told NBCNewYork last week that she stands by her claims that she was "harassed" by state police officials. She would not comment about the phone call the Governor made to her the day before her planned family court appearance to move ahead with the charges.

Paterson first learned of the domestic dispute on Nov. 1, when Johnson allegedly told him he had a "huge fight" with Booker. But the Governor said he was unaware there was any physical dimension to the dispute, the report said.

"I got the impression that this was a loud, emotional exchange, and that the police had been called," Paterson later told investigators.

But The New York Times broke the domestic-abuse story on February 17 and Paterson and Booker spoke by phone again that day for 40 minutes. Paterson told her the story was going to 'blow over.' She said she told Paterson she was upset because the incident was more than a 'bad break up' and she told him the details of the alleged assault.

Paterson apologized to her in that call, saying he was unaware of the details, the report said. But the Governor's office then put out a statement that "There is no independent evidence presented that would substantiate any claims of violence."

On February 24, with the Times set to run another story, Governor Paterson called Booker several times, at one point speaking for 20 minutes, according tot he report. Booker alleged she thought the NYPD was slow in responding to her 9-1-1 calls because she suspected the State Police had stepped in.

Later that night, the Governor called Booker and left her a message about the Times reporting. "You should see the way they wrote this story. They're trying to make it look like I pressured you into dropping this court case. Please help me," Paterson said. "Your lawyer, his statement, makes it sound the same way."

Paterson went on: "I hope, uh - you remember that I was not trying to make you do anything, and - I hope your lawyer will do something to help me here because this, uh, doesn't look good for me, and I wasn't in this."

In the final assessment, Judge Kaye's report found "no evidence" that Governor Paterson committed witness tampering, but he did "rely to heavily" on Johnson's story alone. Also, the report concluded that no one from the State Police interfered with the NYPD case, and Major Day did not attempt to induce Booker to stay away from court.

The report stated that Day may have violated State Police protocols in researching certain records, but he had a right to "make appropriate inquiries" with the NYPD to ensure that any arrest of Johnson would not cause any security issue with the governor.

Booker's attorney Ken Thompson declined comment as he waits to read the report with his client. Johnson's attorney Oscar Michelen also declined comment at this time. Ted Wells, the lawyer for Governor Paterson, is out of town and could not be reached.'

TIMELINE: A Tumultuous Turn In The Governor's Seat
A Timeline of David Paterson's Political Career
By KATIE HONAN, Updated 12:25 PM EDT, Fri, Mar 5, 2010
LINK



Gov. David Paterson announced the end of his week-long campaign for a full term, setting an end date on what has been an short but interesting tenure as Governor of New York.

His career in brief:

1985: David Paterson is elected to the Senate in the 29th District of New York--the same Manhattan district that his father, Basil, served as a Senator. He became the youngest State Senator in Albany, serving as senator until 2007.

November 20th, 2002: Paterson is elected by the Democratic caucus as the Minority Leader, becoming the first non-white state legislative leader and the highest-ranking black elected official in the history of New York State.

2006: New York Attorney General Eliot Spitzer chooses David Paterson as his running mate for the Governor's office. Paterson trades the powerful Senate Majority Leader position--for which he was poised to take--for the Lt. Governor post, which is largely ceremonial.

November 2006: Eliot Spitzer defeats Republican John Faso in a landslide victory to become Governor of New York.

March 10th, 2008: The New York Times reports that Governor Eliot Spitzer was a patron of a high-end prostitution service called the Emperors Club VIP. "Client 9", as Spitzer was called in court papers, appeared briefly in front of reporters.

March 12th, 2008: Eliot Spitzer resigns as governor, effective five days later.

March 17th, 2008: Lt. Governor David Paterson is sworn in at the New York Capitol as the 55th Governor of New York. In his inauguration speech, he says: "Let me reintroduce myself. I am David Paterson and I am the Governor of New York State. ”

March 18th, 2008: In a joint press conference, Paterson and his wife Michelle both admit to extramarital affairs. The Governor admits to multiple liaisons with several women for several years starting in 1999, including a woman on the state payroll. Paterson also stated that he visited the Days Inn on the Upper West Side of Manhattan for trysts, and that he and his wife also visited the same hotel to try "new and exciting things" to save their marriage.

March 25th, 2008: Paterson tells former NY1 News anchor Dominic Carter that he tried cocaine "a couple of times" when he was in his early 20s. He also said he hasn't "touched marijuana since the late '70s."

December 1st, 2008: President-Elect Barack Obama announced he would nominate New York Sen. Hillary Clinton to Secretary of State, leaving a vacant seat in New York.

December 3rd, 2008: Reports state Governor Paterson had a conversation with Caroline Kennedy about the possibility of her taking Clinton's Senate seat. Critics would point out Kennedy's lack of experience in politics, and accused her of riding on her political last name.

"We talked about a number of things, and the seat did come up in the conversation," Paterson said, although he was unsure at the time if she was actually serious about the position.

This was the beginning of what Chris Smith of New York Magazine called "the defining circus of [Paterson's] rookie year in office."

January 12th, 2009: Paterson's selection process for the Senate seat is criticized as being too secretive, going against the Governor's promise to keep an open government.

Paterson refuses to release the list of "about 10" people he is considering for the job. He wont release the blank questionnaire he sent to each candidate for background information. His office says "the process is confidential."

January 21st, 2009: Caroline Kennedy abruptly withdraws from the Senate appointment with a phone call to Paterson. She cites "personal" reasons for her decision.

January 23rd, 2009: Rep. Kirsten Gillibrand, who represents an upstate New York district, is appointed by Governor
Paterson as Hilary Clinton's successor in the Senate to replace Hillary Clinton as New York's junior Senator.

The selection process for Senate shined a light on what many felt was Paterson's indecisiveness and inefficiency. Many felt he had yet to establish himself as a leader in the Democratic party.

March 23, 2009: A Siena Poll finds Governor Paterson's approval rating at just 19%

June 8th, 2009: In one of the more bizarre days in New York political history, Republicans in the State Senate--in the minority by two votes--arrange for a coup in power. Two Democrats, Hiram Monserrate and Pedro Espada, Jr., defect to the Republican side and voted to replace the Majority Leader and Temporary President of the Senate. Governor Paterson tries to force the Senate into action by withholding the Senator's salary, but the Senate remains deadlocked.

July 8th, 2009: David Paterson appoints Richard Ravitch as Lieutenant Governor in an effort to break to the deadlock. He is sworn in at Peter Luger's Steakhouse in Brooklyn. Senate coup leader Pedro Espada Jr., tries to sue to prevent the appointment.

July 9th, 2009: Espada returns to the Democratic side, returning them to a 32-30 majority in the Senate.

July 21st, 2009: New York Supreme Court Justice William R. LaMarca issues a primary injunction to prevent Ravitch from
performing any duties of the office. On August 20th, the Appellate Division's Second Department unanimously rules that the appointment of Ravitch was unlawful because "no provision of the Constitution or of any statute provides for the filling of a vacancy in the office of lieutenant governor other than by election.

September 22, 2009: The New York Court of Appeals, the highest court in New York, rules that the Governor's selection is lawful and a governor may appoint a lieutenant governor in the event of a vacancy.

January 18th, 2010: A Page Six report from the New York Post reports the Governor was seen "nuzzling" and "cooing like a smitten schoolboy" with a woman who was not his wife inside a New Jersey steakhouse. Paterson says he and the woman are just friends.

January 30th, 2010: Another Post item says a state trooper accidental walked in on Paterson hugging another woman who wasn't his wife in a closet at the governor's mansion.

February 5th, 2010: Political reporters all around the city are put into a frenzy as rumors of a damaging New York Times article on the Governor is in the works, set to "Spitzerize" Paterson. Many say it will force the Governor to resign.

February 9th, 2010: Paterson responds to the Times story, saying the paper interview him but didn't ask any questions about the alleged scandal.

He writes a letter to the Times, admonishing them for failing to stop the speculation on the story. On Don Imus' radio show, Paterson says "For a person who has such weak poll numbers, that hasn't raised enough money and has diminishing political support, someone is going very far out of their way to see that I am not a candidate this year," the governor said, blaming the media and special interest groups for attacking his campaign.

"I'm black, I'm blind and I'm still alive... Now how much better do they want me to be?"

February 16th, 2010: The New York Times publishes their story, "Paterson Aide's Quick Rise Draws Scrutiny." Many criticize the paper for over-hyping a story, which profiles Paterson's driver, David Johnson, aka DJ, and his suspicious rise to power. They bring up his two cleared youth offender arrests. Gawker says: "Tell all your friends: Paterson's closest adviser is sort of a thug. The great phantom David Paterson scandal of 2010 ends with a whimper... maybe?"

February 20th, 2010: Paterson kicks off his campaign for Governor to a crowd of 400 at Hofstra University, his Alma mater.
"You need to know that this is a governor who does not quit," he says, selling himself as the underdog in the race. The next day he attends another campaign event in Rochester.

February 24th, 2010: Governor Paterson abruptly suspends David Johnson and asks Attorney General Andrew Cuomo to investigate claims that State Police tried to "improperly influence" a woman Johnson allegedly attacked. His aides admit that Paterson was in contact with the woman, telling her he "was here for her." Although Paterson claimed the woman called him, sources came out and said Paterson was the first to make contact with the woman.

February 25th, 2010: Public Safety Deputy Denise O'Donnell resigns, citing the developing scandal in the administration.

That night, Paterson speaks to reporters as rumors float around of his possible resignation. He states that he will continue his campaign for Governor.

February 26th, 2010: Governor David Paterson announces he will be dropping out of the race, saying he can't run for governor and be governor at the same time.

"I believe that when the facts are reviewed, the truth will prevail," he says, adding, "There are 308 days left in my term. I will serve every one of them fighting for the people of New York."

March 3, 2010: New York State Police Superintendent Harry Corbitt resigns amid the media pressure of the scandal.

That same day, Paterson was charged by the New York State Commission on Public Integrity for violating ethics laws when obtaining five free Yankees tickets for Game 1 of the 2009 World Series and possibly lying about it under oath.

March 4, 2010: Director of Communications Peter Kauffmann resigns, stating: "As a former officer in the United States Navy, integrity and commitment to public service are values I take seriously. Unfortunately, as recent developments have come to light, I cannot in good conscience continue in my current position."
First Published: Feb 26, 2010 6:20 PM EDT

Joan Wexler Of Crooklyn Law School

"TTT,

I am highlighting Joan Wexler and her in$TTiTTuTTion this week on my blog. I was tipped to this PDF by a commenter on my site. Here is Brooklyn Law School's IRS Tax Form 990, i.e. Return of Organization Exempt from Income Tax, for 2007.

http://www.guidestar.org/FinDocuments/2008/237/227/2008-237227990-050fa431-9.pdf

Go to page 18 of Crooklyn's IRS Form 990 to see Joan Wexler's salary and compensation for 2007.

As a dean who devoted 50 hours per week to her position, Joan G. Wexler took home $529,293 in salary; $40,146 in contributions to employee benefit plans & deferred compensation plans; and $50,580 in expense account and other allowances. This brings her TOTAL COMPENSATION for 2007 to $620,019.

Look at line 12 on page 1. The sewer of law took in $69,029,620 in total revenue that year. After total expenses, the "non-profit" school made a nice gain of $9,052,403 this year. On line 21, we can see that Crooklyn had $143,063,841 in total net assets. Line 59 shows the school had $244,
710,030 in total assets.

This lady and her institution have consigned LEGIONS of lawyers to a lifetime of debt servitude, anxiety and doc review hell. Tom, please provide the link to the IRS form, so your readers can see the figures for themselves. Thank you.

Nando"

http://thirdtierreality.blogspot.com/2010/07/profiles-in-flatulence-crooklyn-dean.html

Another great find by Nando. There are legions of underemployed document reviewers slaving away in unventilated basements, so that morally bankrupt individuals like Joan Wexler can continue pulling down half a mil a year by scamming unsuspecting college graduates with all those "inadvertent" errors to US News. The woman is a sham/con artist and she needs to be carted away and locked up before she destroys anymore young lives.

Can my Ex-Wife get something when I die?

Q: My husband of 20 years past away. His estate is going through probate now. Can his ex-wife be entitled to something? She now claims that she owns all the assets in his IRAs and 401K, totaling $2,000,000. Is this LEGAL?

A: Yes. Many people do simple wills before their death and do not seek advice of professional Estate Planning attorney. As a result, they forget about such important assets in their estate as IRAs, 401K(s) and other retirement accounts.

Independent of your intentions, such as seeing the assets distributed to your wife and children, custodians of retirement accounts must follow the directions of the beneficiary designation form - even if that means that $2 million of the assets legally go to an ex-wife from 20 years ago.

Q: What should I do to make sure correct beneficiaries inherit all of my estate?

A: Consult with an Estate planning attorney prior to divorce, marriage, birth of a child and other important life changing event. Many divorce attorneys do not draft separation or divorce documents properly often forgetting about very important assets that by law belong to your current spouse. Such assets are your IRAs, 401(k)s, pension plan accounts and others. If you designate someone other than your spouse to inherit such assets, you need your spouse's permission! If you get divorced from that spouse, you must properly remove such spouse from those assets.

Most important advice any good attorney can give you - review your estate plan including your beneficiary designations annually and during important changes in your life. And for once, let the professional handle your estate planning needs!

An Inheritance Shocker - Retirement Account Beneficiaries

Do you want your spouse to inherit the money in your 401(k) — or do you want your former spouse to get it? If you are divorced, remarried or have children from a previous relationship, make sure you have updated the beneficiary designation for your retirement plan at work. Otherwise, your spouse or kids could be in for a shock.

A shock is exactly what William Kennedy gave his daughter, Kari. The elder Kennedy married Kari’s mom in 1974 while working for DuPont. He named his wife as the beneficiary of his 401(k), and with no children at the time, he left blank the contingent beneficiary (who would get the money if the wife died first).

When the couple divorced in 1994, his ex-wife agreed to relinquish any rights to the money in the plan so that Kari would receive the money. But William did not sign new papers at work to officially change his beneficiary designation. So when he died in 2001, DuPont gave his ex-wife the proceeds — $400,000.

Kari sued DuPont, arguing that it violated the divorce decree by giving the money to her mother. The case made it all the way to the Supreme Court, which recently ruled in favor of DuPont. The majority ruled that DuPont acted in accordance with ERISA, the law governing retirement plans, which stipulates that beneficiary designations trump all other agreements.

The lesson: It’s not enough to sign a contract or write a will. If you want someone to be the heir of your retirement plan at work, you must stipulate your instructions in the trust documents. Have you done your Estate Planning lately? Have you reviewed your beneficiary designations lately to make sure that the people you want to get your money are really the people who will get your money? If you haven’t done so recently, go to your attorney and do your Estate Planning properly.

Footnote: The court noted that Kari could sue her mother based on the divorce agreement, but that won’t do her any good. She told her hometown newspaper The Enterprise that her mother died in 2007 after moving to Norway and spending all the money.

Evelyn

"Tom the Temp,

Just so you know, De Novo is still an awful place to work. From what I hear, Evelyn and Mr. Singer are still using mind tricks to control and exploit their slaves. They are driving down the rates close to the twenty dollar range and stuffing all the extra money into their pockets. Anyone who objects, or in anyway displays a 'negative attitude' is immediately blacklisted. It's bait and switch central. She acts all sweet and tries to put the blame on the client for being the bad guy, but everyone knows she is full of crap. Evelyn is constantly lying about the terms and conditions of the projects, and anyone who objects is immediately put on the shit list. It's simply not right. It makes me sick to think that during this economic calamity De Novo and all these record profiteering law firms are using their extraordinary market power to exploit and terrorize everyday Americans who are just trying to survive and put food on the table. I'd rather live in welfare housing than put up with the deceitful shenanigans of these unethical business people."

25% Of Recent Law Graduates Work As Office Temps; Most Make Far Less Than $70,000 A Year

The NALP is finally starting to come clean. Their numbers are grossly distorted and flat out fraudulent.

http://www.abajournal.com/news/article/median_salary_of_2009_law_grads_is_72k_but_job_picture_cloudy_nalp_stats_sh/

Minneapolis, Where Recent JD's Work For Dirt Cheap And Scrounge Through Garbage Cans

"Need document review done? Come to Minneapolis!

We offer: plenty of attorneys that are hungry with student loans.
We have four law schools pumping out attorneys faster than BP can spill oil
Employment-at-will statutes
Overtime starting at 48 hours vs 40 hours. (In other words, you'll never need to pay it)!
Firms from anywhere in the country can fly a partner in and out in the same day for a quick training.
Low wages, one major employer pays attorneys $17/hour with no benefits."

Invest in Museum Risk Management - Don't Always Count on Someone Being There When Disaster Strikes

Back in June 2008 flooding damaged areas of Iowa. One place hit by the rising waters was the University of Iowa's (UI) art museum. The good news is that the Figge Museum in Davenport was able to house and protect some of UI's artwork after the flood. Just as when Hurricane Katrina hit Louisiana and other nearby states, several art museums came to help out institutions affected by the disaster. However, long-term help cannot always be counted on. In UI's situation, Lloyd's of London will not insure a new museum building for UI if they construct it in the same spot. And the Federal Emergency Management Agency(FEMA) has just denied UI's request for funds to help build a new museum. The lesson is that an investment in risk planning can help a cultural institution mitigate or prevent problems later.

Operation Andromeda - Carabinieri Cultural Heritage Protection Command Press Release

CONDENSED PRESS STATEMENT (TRANSLATED FROM THE ITALIAN)
Unedited original available at
www.carabinieri.it/Internet/Cittadino/Informazioni/ComunicatiStampa/2010/Luglio/20100716_100000.htm

On July 16, 2010, the Carabinieri Cultural Heritage Protection Command presented to the press ... three hundred thirty seven exceptional archaeological finds, from Lazio, Puglia, Sardinia and Magna Graecia, dating between eighth century BC and fourth century AD, and returned from Geneva, Switzerland on June 25, 2010.

Among the many outstanding heritage items are ... loutrophoros, marble statues depicting the goddess Venus, Apulian and Attic volute craters, craters mask Canosa, kylix Chalkidiki, bronzes, frescoes from Pompeii, a basket and two nuraghic warriors, whose value is determined on the illicit market based on their size in centimeters (about ten thousand euros per centimeter).

The total asset value of the works exceeds fifteen million euros. The exhibits were seized earlier this year by the Swiss authorities and by the Carabinieri, as a result of an investigation commonly known as "Andromeda" in the free port of Geneva, where they were stored by an art dealer and a Japanese Swiss businessman ....

...

Harold Sturgeon v William Bratton

Bill Bratton has left California and has landed once again in New York City. Will he be tapped by a governor hopeful? Let's hope not.

Harold Sturgeon v. William Bratton
LINK

Filed 6/17/09

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

HAROLD P. STURGEON,

Plaintiff and Appellant,

v.

WILLIAM J. BRATTON et al.,

Defendants and Respondents;

BREAK THE CYCLE et al.,

Interveners and Respondents.

B209913

(Los Angeles County

Super. Ct. No. BC351646)

APPEAL from a judgment of the Superior Court of Los Angeles County, Rolf M. Treu, Judge. Affirmed.

Judicial Watch, Inc. and Sterling E. Norris for Plaintiff and Appellant.

Rockard J. Delgadillo, City Attorney and Paul L. Winnemore, Deputy City Attorney for Defendants and Respondents.

ACLU Foundation of Southern California, Hector O. Villagra, Belinda Escobosa Helzer, Mark Rosenbaum and Ahilan Arulanantham for Interveners and Respondents.

Special Order 40 (SO40) is the policy of the Los Angeles Police Department (LAPD) governing interactions with illegal immigrants. It prohibits LAPD officers from initiating police action with the sole objective of discovering the immigration status of an individual, and arresting individuals for illegal entry into the United States. In 1987, this court upheld SO40 against a challenge that the mere questioning of a criminal arrestee about his immigration status, and passing that information on to federal immigration officials, acts permitted by SO40, constituted unconstitutional state enforcement of federal civil immigration law. (Gates v. Superior Court (1987) 193 Cal.App.3d 205, 219.) We concluded that the LAPD could voluntarily transfer legitimately obtained arrest information to federal authorities without running afoul of the U.S. Constitution. (Ibid.)

Subsequently, Congress enacted a statute invalidating state and local restrictions on the voluntary exchange of immigration information with federal immigration authorities. (8 U.S.C. § 1373 (section 1373).) Plaintiff Harold P. Sturgeon brought a taxpayer action to enjoin defendants, LAPD Chief William Bratton and other officials, from enforcing SO40, as a local restriction invalidated by section 1373. The trial court permitted intervention, in support of defendants, by several organizations supporting immigrants’ rights. Interveners and defendants moved for summary judgment on the basis that SO40 was not invalid. Sturgeon took the position that SO40 violated the supremacy clause (U.S. Const., art. VI, cl. 2) because it conflicted with section 1373. Alternatively, Sturgeon argued that SO40 was preempted by federal immigration law. Finally, Sturgeon argued that SO40 violated Penal Code section 834b, a California statute requiring local law enforcement agencies to cooperate with federal immigration authorities, and specifying certain immigration enforcement tasks which must be taken with respect to every arrestee suspected of being present in the United States illegally.

The trial court granted summary judgment, upholding the validity of SO40. As to Sturgeon’s contention that SO40 violated the supremacy clause, the trial court concluded that Sturgeon’s challenge was solely a facial challenge, not an as-applied challenge, and that Sturgeon had failed to establish that SO40 was facially invalid under all circumstances. As to Sturgeon’s preemption argument, the trial court concluded SO40 is not preempted by federal immigration authority. Finally, as to Sturgeon’s argument that SO40 violated Penal Code section 834b, the trial court concluded that Penal Code section 834b was itself preempted by federal law. The trial court therefore granted summary judgment in favor of defendants and interveners. Sturgeon appeals. We agree with the trial court’s analysis in all respects, and therefore affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A brief review of the relationship between federal and local authorities with respect to the enforcement of immigration law is helpful to place into context the adoption of SO40. While improper entry into the United States is a misdemeanor (8 U.S.C. § 1325(a)), an alien illegally in the country may also be subjected to removal proceedings before an immigration judge (8 U.S.C. § 1229a). Only the former constitutes a criminal proceeding.

The federal government has the exclusive authority to enforce the civil provisions of federal immigration law relating to issues such as admission, exclusion and deportation of aliens. (Gates v. Superior Court, supra, 193 Cal.App.3d at pp. 214 215.) As such, Congress is prohibited by the Tenth Amendment from passing laws requiring states to administer civil immigration law. (City of New York v. United States (2d Cir. 1999) 179 F.3d 29, 33-35.)

Under federal law, matters of immigration are handled by the Office of Immigration and Customs Enforcement (ICE), a branch of the Department of Homeland Security. (Fonseca v. Fong (2008) 167 Cal.App.4th 922, 927.) Authorized ICE officers have powers to enforce federal immigration laws which exceed the powers of state law enforcement officers. Under 8 U.S.C. § 1357(g), the Attorney General of the United States may enter into a written agreement with a State or political subdivision pursuant to which State or local officers may carry out the function of immigration officers, but this requires a voluntary agreement, and the local officer would be subject to the supervision of the Attorney General when performing the functions of an ICE officer. (8 U.S.C. § 1357(g)(3).) Similarly, the Attorney General may authorize local law enforcement officers to perform as ICE officers when a mass influx of aliens requires an immediate response; even then, the Attorney General must act “with the consent of the head of the department, agency, or establishment under whose jurisdiction the individual is serving.” (8 U.S.C. § 1103, subd. (a)(10).)

While the Tenth Amendment shields state and local governments from the federal government requiring them to administer federal civil immigration law, local police are not precluded from enforcing federal criminal statutes. (Gates v. Superior Court, supra, 193 Cal.App.3d at p. 215.) Thus, in theory, local police could arrest for misdemeanor improper entry into the United States. However, in California, a police officer may arrest for a misdemeanor only when that offense is committed in the officer’s presence. (Pen. Code, § 836, subd. (a).) As the misdemeanor offense of improper entry into the United States is complete upon the improper entry itself, no California police officer can arrest for misdemeanor illegal entry once the alien has reached a place of repose. (Gates v. Superior Court, supra, 193 Cal.App.3d at pp. 215 216.) As it is extremely unlikely that an LAPD officer would make contact with an illegal alien during the course of that individual’s illegal entry into the United States, LAPD officers generally cannot arrest aliens for illegal entry into the United States.

As LAPD officers can neither commence deportation proceedings nor arrest aliens for improper entry, they are powerless to take direct action against an individual they believe to be in this country illegally. However, LAPD officers may, “ ‘as a matter of comity and good citizenship,’ ” voluntarily report such individuals to ICE, and it does not constitute improper local enforcement of civil immigration law for them to do so. (Gates v. Superior Court, supra, 193 Cal.App.3d at p. 219.) Many local police agencies, including the LAPD, believe that local law enforcement can best achieve its goal of crime prevention by making it known to the community that local law enforcement officers are unconcerned with immigration violations – thereby encouraging illegal immigrants to come forward with relevant information about crimes without fear of deportation. Thus, while local police officers are permitted under federal law to voluntarily report suspected illegal aliens to ICE, some local entities have chosen to restrict such reporting. (See City of New York v. United States, supra, 179 F.3d at p. 31 32 considering a Mayor’s Executive Order prohibiting city officers from transmitting information regarding immigration status to federal authorities except under specified circumstances.) The LAPD did not do so. Instead, it chose to impose limits on its officers’ ability to investigate the immigration status of aliens with whom they come into contact.

SO40 was promulgated by then-Chief of Police Daryl Gates on November 27, 1979. Special Orders are directives issued by the Chief of Police which amend the LAPD Manual. Although the parties, and, apparently, members of the community, continue to refer to the LAPD’s policy regarding illegal immigrants as “SO40,” the relevant provision is in the LAPD Manual with a different section number. Volume IV, Section 264.50 of the LAPD Manual provides, “ENFORCEMENT OF UNITED STATES IMMIGRATION LAWS. Officers shall not initiate police action where the objective is to discover the alien status of a person. Officers shall neither arrest nor book persons for violation of Title 8, Section 1325 of the United States Immigration Code (Illegal Entry).” Stated broadly, SO40 prevents LAPD officers from commencing investigations directed solely toward uncovering violations of civil immigration laws, and arresting for an immigration misdemeanor which is not committed within their presence.

Sturgeon’s challenge to SO40 is based entirely on a federal statute enacted some 17 years after SO40. In 1996, Congress enacted a statute to protect the voluntary exchange of information with ICE. Section 1373 provides, “Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, ICE information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” (Section 1373(a)). The statute also provides that no person or agency may prohibit or restrict a local entity from: (1) sending such information to, or requesting and receiving such information from, ICE; (2) maintaining such information; or (3) exchanging such information with any other government entity. (Section 1373(b).) Finally, the statute requires ICE to respond to any inquiry by a federal, state, or local government agency “seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.” (Section 1373(c).)

On May 1, 2006, Sturgeon brought this action against defendants. Sturgeon had not been personally impacted by the application of SO40; instead, he brought a so called “taxpayer” action to enjoin the enforcement of SO40 as an illegal expenditure of public funds. (Code Civ. Proc., § 526a.) Defendants’ demurrer was overruled, and the interveners were permitted to join the action on behalf of defendants.

Substantial discovery was conducted. The majority of Sturgeon’s discovery consisted of depositions of current and past high-ranking LAPD officers, in order to obtain their opinions on the scope of SO40 and the particular police conduct it prohibits and permits. Sturgeon did not obtain any information regarding any specific instance of the application of SO40. When asked, by special interrogatory, to identify all individuals “who have been prohibited by SO40 from sending to immigration officials information regarding the immigration status of an individual,” Sturgeon objected to the request as “inappropriate to the type of lawsuit brought by Plaintiff, which is a legal challenge to a longstanding policy of the LAPD, and not reasonably calculated to lead to the discovery of admissible evidence.” The same response was given to interrogatories asking for the identity of individuals prohibited by SO40 from receiving information from immigration officials, maintaining immigration information, and exchanging immigration information with any law enforcement agency. Indeed, Sturgeon gave the same response to an interrogatory seeking the identity of law enforcement officers who have complained about the prohibitions or restrictions of SO40.

Thereafter, both defendants and interveners moved for summary judgment. They argued that: (1) Sturgeon brought only a facial challenge to SO40, not an as-applied challenge; (2) SO40 was not facially invalid as it did not violate section 1373 in all circumstances; (3) SO40 was similarly not preempted by federal law; and (4) there can be no conflict with Penal Code section 834b, as that statute had been determined to be preempted by federal immigration law. With respect to the purported conflict with section 1373, defendants and interveners took the position that SO40, on its face, says nothing regarding prohibiting communication with ICE, but only prohibits officers from initiating police action regarding immigration status. In contrast, defendants and interveners argued, section 1373, on its face, says nothing regarding local policies prohibiting the initiation of police action into immigration status, but only invalidates local policies prohibiting contact with ICE.

Sturgeon opposed summary judgment with deposition excerpts, reports, and other evidence regarding the scope of SO40. Sturgeon argued that he was challenging not merely the language of SO40, but the broader way in which in which it had been applied. However, none of Sturgeon’s evidence dealt with a particular application of SO40; instead, Sturgeon focused on the opinions of highly-ranked LAPD officers regarding the meaning of SO40. While we do not disagree with Sturgeon that the proffered interpretations of SO40 were somewhat inconsistent, all of the LAPD witnesses agreed that SO40 prohibits arresting someone for misdemeanor illegal entry, and prohibits initiating an investigation into an individual solely to determine that person’s immigration status. There was some disagreement among the LAPD witnesses regarding whether SO40 also prohibits investigating the immigration of status of an individual already under investigation for something unrelated to immigration status. Moreover, there was some disagreement regarding whether an LAPD officer who happened to discover information indicating that an individual not otherwise under arrest was present in the country illegally could contact ICE. In response to a special interrogatory asking the circumstances under which SO40 prohibits asking ICE regarding a person’s immigration status, defendants responded “SO40 prohibits LAPD from initiating police action with the objective of discovering the alien status of a person. If an individual were to contact ICE for that explicit purpose and for no other, they would be violating SO40.”

The disagreements among the witnesses as to the scope of SO40 are irrelevant, as Sturgeon argued that SO40’s undisputed prohibition on initiating investigations for the sole purpose of determining immigration status was itself a violation of section 1373. Sturgeon argued that preventing officers from obtaining information regarding an individual’s immigration status is a restriction on voluntarily reporting such information to ICE, because a restriction on obtaining information reduces the amount of information which can then be reported. Additionally, Sturgeon argued that a triable issue of fact exists as to whether, in practice, SO40 is interpreted to prevent, at least in some cases, otherwise-permissible voluntary contact with ICE, in violation of section 1373.

The trial court concluded that, as Sturgeon relied on no actual instances of the application of SO40, Sturgeon’s challenge to SO40 was strictly facial. As such, the court denied all requests for judicial notice (and declined to rule on all evidentiary objections) as only the language of SO40 was relevant. Concluding that there was no total and fatal conflict with section 1373, the trial court held that SO40 survived Sturgeon’s facial challenge. The court also concluded that SO40 is not otherwise preempted by federal law, and that since Penal Code section 834b is preempted, SO40’s conflict with that statute is irrelevant. Summary judgment was granted. Judgment was entered in favor of defendants and interveners. Sturgeon filed a timely notice of appeal.

ISSUES ON APPEAL

We first consider whether the trial court erred in determining that Sturgeon brought only a facial, not an as-applied, challenge to SO40; we conclude the trial court did not err. We next conclude that Sturgeon’s facial challenge is insufficient to enjoin the enforcement of SO40 and SO40 is not otherwise preempted by federal immigration law. Finally, we agree that Penal Code section 834b is preempted, and thus cannot pose a challenge to the enforcement of SO40. We therefore will affirm the judgment.

DISCUSSION

1. Standard of Review

“ ‘A defendant is entitled to summary judgment if the record establishes as a matter of law that none of the plaintiff’s asserted causes of action can prevail.’ (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) The pleadings define the issues to be considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055.) As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact. (AARTS Productions, Inc. v. Crocker National Bank (1986) 179 Cal.App.3d 1061, 1064-1065.)” (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) “There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) We review orders granting or denying a summary judgment motion de novo. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 72; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 579.) We exercise “an independent assessment of the correctness of the trial court’s ruling, applying the same legal standard as the trial court in determining whether there are any genuine issues of material fact or whether the moving party is entitled to judgment as a matter of law.” (Iverson v. Muroc Unified School Dist. (1995) 32 Cal.App.4th 218, 222.)

2. Facial and As-Applied Challenges

Sturgeon contends SO40 violates the supremacy clause because it is impermissible under section 1373. A constitutional challenge to a statute, ordinance or policy may be facial or as-applied. “A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. Citation. ‘ “To support a determination of facial unconstitutionality, voiding the statute as a whole, those challenging the statute or ordinance cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute . . . . Rather, the challengers must demonstrate that the act’s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.” ’ ” (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084; American Civil Rights Foundation v. Berkeley Unified School Dist. (2009) 172 Cal.App.4th 207, 216.) Under a facial challenge, the fact that the statute “ ‘might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid . . . .’ ” (Sanchez v. City of Modesto (2006) 145 Cal.App.4th 660, 679.)

“An as applied challenge may seek (1) relief from a specific application of a facially valid statute or ordinance to an individual or class of individuals who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute or ordinance has been applied, or (2) an injunction against future application of the statute or ordinance in the allegedly impermissible manner it is shown to have been applied in the past. It contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute or ordinance has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right.” (Tobe v. City of Santa Ana, supra, 9 Cal.4th at p. 1084) “If a plaintiff seeks to enjoin future, allegedly impermissible, types of applications of a facially valid statute or ordinance, the plaintiff must demonstrate that such application is occurring or has occurred in the past.” (Ibid.)

On appeal, Sturgeon argues that the facial/as-applied distinction applies only to challenges to statutes and ordinances, not policies or practices. Sturgeon fails to cite any authority which has held that this distinction does not apply to policies or practices. Instead, he bases his argument on the premise that statutes and ordinances are accorded a presumption of validity which does not apply to mere policies or practices, and he notes the existence of several cases in which policies or practices were challenged without the court determining whether the challenge was facial or as applied. (E.g., White v. Davis (1975) 13 Cal.3d 757.) We are not persuaded. When a duly authorized policy is challenged as unconstitutional, recent authority has, in fact, considered whether the challenge is facial, and has accorded the policy the same deference accorded a facially-challenged statute or regulation. (American Civil Rights Foundation v. Berkeley Unified School Dist. (2009) 172 Cal.App.4th 207, 216 the challenger must establish that no set of circumstances exists under which the policy would be valid.)

We therefore consider whether Sturgeon’s challenge to SO40 is facial or as applied. Indisputably, it is facial only. An as-applied challenge depends on the existence of previous, or current, instances of unconstitutional applications. Sturgeon relies on no applications of SO40. He cites to no instances in which an officer was disciplined for violating SO40, and even asserted that the discovery of such instances would be “inappropriate to the type of lawsuit” he brought. Nor can Sturgeon identify an instance in which an officer wanted to contact ICE or question an individual regarding immigration but failed to do so because of a belief that such contact or inquiry would be barred by SO40. In the absence of any specific applications of the policy, Sturgeon’s challenge is necessarily facial only.

Sturgeon suggests that he has presented evidence of the way SO40 is applied by means of the deposition testimony of high-ranking LAPD officers as to their opinion of the meaning of SO40. We disagree. There is no evidence that the deposition testimony of these officers was anything more than their opinion of how SO40 might be applied in hypothetical situations. There was no evidence that these officers ever: (1) actually applied SO40 in the manner in which they testified; (2) disciplined a subordinate for violating their interpretation of SO40; or even (3) directed subordinates to act in accordance with their interpretation of SO40.

The most persuasive evidence Sturgeon has of the way in which SO40 is applied is defendants’ interrogatory answer that “SO40 prohibits LAPD from initiating police action with the objective of discovering the alien status of a person. If an individual were to contact ICE for that explicit purpose and for no other, they would be violating SO40.” Yet this language, too, is couched in hypothetical language beginning, “If an individual were to contact ICE . . . .” There is no evidence that an LAPD officer ever wanted to voluntary contact ICE for these purposes, but was deterred from doing so by SO40. With no evidence that officers actually were prohibited from voluntarily contacting ICE for the sole purpose of discovering immigration status, Sturgeon’s challenge to SO40’s constitutionality cannot be characterized as an as-applied challenge.

3. SO40 Survives a Facial Challenge

To succeed at his facial challenge, Sturgeon must establish that SO40’s provisions inevitably pose a present total and fatal conflict with section 1373; a mere hypothetical conflict is insufficient.

“In interpreting a statute, we apply the usual rules of statutory construction. ‘We begin with the fundamental rule that our primary task is to determine the lawmakers’ intent. Citation. . . . To determine intent, “ ‘The court turns first to the words themselves for the answer.’ ” Citations. “If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) . . . .” ’ Citation. We give the language of the statute its ‘usual, ordinary import and accord significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided.’ ” (Kane v. Hurley (1994) 30 Cal.App.4th 859, 862.)

The text of SO40 provides: “Officers shall not initiate police action where the objective is to discover the alien status of a person. Officers shall neither arrest nor book persons for violation of Title 8, Section 1325 of the United States Immigration Code (Illegal Entry).” The text of section 1373(a) states: “Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, ICE information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” Consideration of both of these provisions demonstrates that there is no total and fatal conflict.

SO40 does not address communication with ICE; it addresses only the initiation of police action and arrests for illegal entry. Section 1373(a) does not address the initiation of police action or arrests for illegal entry; it addresses only communications with ICE. Sturgeon argues a total and fatal conflict exists, because the language of section 1373(a) which prohibits local entities from “restricting in any way” the sending of information to ICE should be read to strike down local prohibitions on obtaining information that might later be sent to ICE. We disagree. Section 1373(b) prohibits local entities from restricting government entities from maintaining immigration information and exchanging such information with any other entity. Clearly, if Congress had wanted to prohibit restrictions on local entities obtaining such information, it could have expressly so legislated. Moreover, if “restricting in any way” communications with ICE is read to include obtaining information to give ICE, there would be no need for section 1373(b) to specifically permit local entities to maintain immigration information and exchange it with other governmental entities as, clearly, maintaining such information and obtaining it from other governmental entities makes the information available to be transmitted to ICE. In short, Sturgeon’s strained interpretation of section 1373 finds no support in the language of the statute, and, in fact, would render provisions of the statute nugatory. We therefore reject it.

4. SO40 Is Not Preempted

Sturgeon next argues that even if SO40 is not unconstitutionally invalid because of a conflict with section 1373, SO40 is preempted by section 1373. Sturgeon does not argue that SO40 is preempted by any other federal law or federal immigration legislation generally. He simply argues that the perceived overlap between SO40 and section 1373 results in the latter preempting the former. Recharacterizing his argument as sounding in preemption is of little advantage to Sturgeon, for the result is the same. We will not strike down SO40 as preempted when there exists only the hypothetical possibility that it may be applied contrary to the terms of section 1373.

“There is ordinarily a ‘strong presumption’ against preemption. Citations. ‘Consideration of issues arising under the supremacy clause “starts with the assumption that the historic police powers of the States are not to be superseded by . . . Federal Act unless that is the clear and manifest purpose of Congress.” Citation. Accordingly, “ ‘the purpose of Congress is the ultimate touchstone’ ” of pre-emption analysis. Citation.’ Citation. However, when the state regulates in an area where there has been a history of significant federal presence the ‘ “assumption” of nonpre emption is not triggered . . . . ’ Citation.” (Fonseca v. Fong, supra, 167 Cal.App.4th at p. 930.)

The power to regulate immigration is unquestionably exclusively a federal power. (Ibid.) However, it does not follow that all state regulations touching on aliens are preempted. “Only if the state statute is in fact a ‘regulation of immigration,’ i.e., ‘a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain’ citation, is preemption structural and automatic. Otherwise, the usual rules of statutory preemption analysis apply; state law will be displaced only when affirmative congressional action compels the conclusion it must be.” (In re Jose C. (2009) 45 Cal.4th 534, 550.) As SO40 is a regulation of police conduct and not a regulation of immigration, there is no structural preemption and the assumption of non-preemption applies.

Sturgeon contends SO40 is preempted by federal law, as it conflicts with the intent of Congress in enacting section 1373 and stands as an obstacle to the accomplishment of that intention. Obstacle preemption arises when a state statute or regulation “ ‘ “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” ’ ” (In re Jose C., supra, 45 Cal.4th at p. 551.) It cannot seriously be disputed that Congress’s objective in enacting section 1373 was to eliminate any restrictions on the voluntary flow of immigration information between state and local officials and ICE; indeed, the express language of section 1373 does just that. Nonetheless, we do not conclude SO40 is preempted for the same reason we did not conclude that it was unconstitutional: as a general rule, enforcement of SO40 has no effect on the voluntary flow of immigration information between LAPD officers and ICE. SO40 addresses only the initiation of investigations (and a prohibition on misdemeanor arrests); it does not, by its terms, restrict LAPD officers from voluntarily contacting ICE. Without any indication that SO40 is actually interpreted to conflict with section 1373, we will not find preemption based only on a hypothetical situation. (Solorzano v. Superior Court (1992) 10 Cal.App.4th 1135, 1148 stating “mere speculation about a hypothetical conflict is not the stuff of which preemption is made”.)

5. Penal Code 834b Creates No Bar to SO40, as it is Preempted

Sturgeon’s final argument is that SO40 violates Penal Code section 834b. That Penal Code section was enacted by Proposition 187, and governs law enforcement cooperation with ICE. It provides that every law enforcement agency in California “shall fully cooperate” with ICE “regarding any person who is arrested if he or she is suspected of being present in the United States in violation of federal immigration laws.” (Pen. Code, § 834b, subd. (a).) With respect to any such person, the statute requires that law enforcement “attempt to verify the legal status of such person” as a citizen, lawful permanent resident, lawful temporary resident, or alien present in violation of immigration laws. (Pen. Code, § 834b, subd. (b)(1).) If it appears that the person falls into the latter category, law enforcement is required to notify the person of his or her apparent illegal status “and inform him or her that, apart from any criminal justice proceedings, he or she must either obtain legal status or leave the United States.” (Pen. Code, § 834b, subd. (b)(2).) Law enforcement is also required to notify the California Attorney General and ICE of the apparent illegal status of the arrestee. (Pen. Code, § 834b, subd. (b)(3).) Penal Code section 834b, subdivision (c) expressly provides: “Any legislative, administrative, or other action by a city, county, or other legally authorized local governmental entity with jurisdictional boundaries, or by a law enforcement agency, to prevent or limit the cooperation required by subdivision (a) is expressly prohibited.”

In 1995, shortly after the voters adopted Proposition 187, the United States District Court for the Central District of California concluded that Penal Code section 834b, in its entirety, was preempted as an impermissible regulation of immigration. (League of United Latin American Citizens v. Wilson, supra, 908 F.Supp. at p. 771.) This conclusion has been acknowledged in California courts. (Fonseca v. Fong, supra, 167 Cal.App.4th 922, 933-935.)

The district court’s opinion that Penal Code section 834b was preempted predated Congress’s 1996 enactment of section 1373. Sturgeon argues that section 1373 undermines the district court’s finding of preemption, because section 1373 encourages cooperation between local police and ICE. We disagree. “A state law invading an area reserved exclusively to the federal government under the Constitution cannot be saved by a congressional enactment.” (Fonseca v. Fong, supra, 167 Cal.App.4th at p. 928, fn. 7.) Penal Code section 834b was preempted as an impermissible regulation of immigration; an intervening congressional enactment cannot save it. As Penal Code section 834b is preempted by federal law, any perceived conflict with SO40 is irrelevant.

DISPOSITION

The judgment is affirmed. Defendants and interveners shall recover their costs on appeal.

CERTIFIED FOR PUBLICATION

CROSKEY, J.

WE CONCUR:

KLEIN, P. J.

KITCHING, J.

Repugnant Verdicts

Juries are permitted to deliver stupid verdicts. They can believe the wrong people, accept the ridiculous while rejecting the obviously true. They cannot, however, square a circle.

So some verdicts will arguably be repugnant. A verdict is repugnant when it is logically inconsistent, not when it's factually stupid. In other words, a combination of convictions and acquittals will be legally unacceptable when, no matter what evidence the jury might have accepted or rejected, this combination is impossible to reconcile with itself. A verdict is repugnant if an acquittal on one charge conclusively negates a necessary element of a crime for which the defendant was convicted (People v Tucker, 55 NY2d 1 [1981]). A verdict is also repugnant/inconsistent if the defendant is convicted of two counts which effectively find differing mental states as to the same act (People v Gallagher, 69 NY2d 525 [1987] [the same murder cannot be both intentional and depraved]).

Few verdicts are actually repugnant. If the jury could find a reasonable doubt as to the element of one crime, e.g assault, without necessarily finding a reasonable doubt as to another crime, e.g. robbery, then acquittal on the first is not repugnant even if there is a conviction on the second. It might be stupid, if the robbery allegations seem to be entirely dependent on and peripheral to the existence of the assault, but that is not the same as legally inconsistent. The jury can accept some and reject some of the same sentence, though I do not believe that it can accept a fact for one purpose and reject it for another. The evaluation is much like a rule against perpetuities problem. If you can imagine a combination of findings which permit the verdict, it's permissible.

A verdict which includes one ore more acquittals and is ruled to be repugnant will result in the jury reconsidering those acquittals. CPL 31.50(2) provides that if the
jury renders a verdict which is legally defective then the court “must explain the defect or error and must direct the jury to reconsider such verdict”. Therefore, dealing with repugnance is a two step process. One, is the verdict repugnant? Two, is your client better off if you keep your mouth shut? The best way to deal with a complex case is to consider, while the jury is out, what combination of verdicts might be repugnant, and whether you want to object. That way you're not scrambling to make the calculation in a rush. Failing that, request a brief delay in releasing the jury to consider your options.

This is why a claim that the verdict is repugnant must be raised before the jury is discharged to preserve the claim. The assumption is that defense counsel made a strategic choice not to raise repugnance, to avoid the remedy.

Finally, repugnance is not tested by referring to what the law actually requires, it is tested by referring to the law as it was given to this jury, even if the charge was erroneous (People v Green, 71 NY2d 1006 [1988]).

Michael Lippman, Lawyer For The Bronx Public Administrator, Stole From Estates

Michael Lippman

Lawyer Michael Lippman has made $1.9 million in fees relating to the inheritance accounts.

A top Bronx judge let political cronies reap lucrative fees from dozens of improperly invested inheritances - leaving taxpayers on the hook for $20 million.

The mishandling of the money - overseen by Surrogate Judge Lee Holzman and managed by two aides - let politically wired lawyers and accountants rake in $2.1 million in fees, while heirs of the 37 victimized estates couldn’t get their money.

“They take their fees and the families be damned,” said Robert Southern, who has threatened to sue to get his inheritance from his late aunt, Florence Einstein.

“Are they waiting for us all to die?” asked Sharon Gentry, whose 97-year-old mother-in-law is still waiting for her inheritance from cousin Alice Babineau, who was killed in a 1995 car accident.

A Daily News investigation found the risky investments were first made in 2005 by ex-Bronx public administrator Esther Rodriguez, who resigned under a cloud in 2006, and continued by her successor, John Raniolo.
Raniolo
Public administrators manage the assets of residents who die without wills until the court approves a settlement. They are supposed to invest estate money in conservative financial instruments such as treasury bills.

Judge Holzman appointed Rodriguez and Raniolo to the job and was responsible for monitoring all of the estates. He signed off on all fees and was supposed to make sure the cases moved swiftly through the courts.

Michael Lippman, former counsel to the Bronx public administrator, is being investigated by two agencies for taking early payments on estate work.

Lawyer Michael Lippman has made $1.9 million in fees relating to the inheritance accounts.

A top Bronx judge let political cronies reap lucrative fees from dozens of improperly invested inheritances - leaving taxpayers on the hook for $20 million.

The mishandling of the money - overseen by Surrogate Judge Lee Holzman and managed by two aides - let politically wired lawyers and accountants rake in $2.1 million in fees, while heirs of the 37 victimized estates couldn’t get their money.

“They take their fees and the families be damned,” said Robert Southern, who has threatened to sue to get his inheritance from his late aunt, Florence Einstein.

“Are they waiting for us all to die?” asked Sharon Gentry, whose 97-year-old mother-in-law is still waiting for her inheritance from cousin Alice Babineau, who was killed in a 1995 car accident.

A Daily News investigation found the risky investments were first made in 2005 by ex-Bronx public administrator Esther Rodriguez, who resigned under a cloud in 2006, and continued by her successor, John Raniolo.

Public administrators manage the assets of residents who die without wills until the court approves a settlement. They are supposed to invest estate money in conservative financial instruments such as treasury bills.

Judge Holzman appointed Rodriguez and Raniolo to the job and was responsible for monitoring all of the estates. He signed off on all fees and was supposed to make sure the cases moved swiftly through the courts.

Ex-Counsel to Public Administrator in Bronx Faces Excessive Fee Charges
Daniel Wise, New York Law Journal, July 09, 2010

Michael Lippman, who had been counsel to the public administrator in the Bronx for more than 30 years when he was terminated in April 2009, pleaded not guilty yesterday to charges of taking excessive fees for his work on five estates, amounting to $300,000.

A 15-count indictment brought by the Bronx District Attorney's Office also accused Mr. Lippman of filing false documents to conceal the excessive fees.

Mr. Lippman surrendered yesterday and prosecutors agreed to his release without bail by Acting Supreme Court Justice Steven L. Barrett (See Profile).

Mr. Lippman's lawyer, Murray Richman, said "there is no basis for the charges." The alleged thefts took place before guidelines set in 2002 by the Administrative Board of the Offices of the Public Administrators were adopted, he added.

The guidelines set a fee of 6 percent on the first $750,000 of an estate with the percentage decreasing incrementally on greater amounts.

Mr. Lippman also was accused of concealing his overcharges from Bronx Surrogate Lee L. Holzman by misstating in court documents the amounts he had taken from the estates.

If convicted of the top charge, second-degree grand larceny, Mr. Lippman could be sentenced to a maximum of five to 15 years in prison.

The New York Daily News first reported in October 2009 that Mr. Lippman was being investigated by the New York City Department of Investigation and the Bronx District Attorney's Office.

The indictment names five cases: Estate of Cushman, Estate of Greenbaum, Estate of McGoldrick, Estate of Laskhoff and Estate of Risso. One source close to the investigation said thefts had occurred in far more than the five case and that Mr. Lippman used money taken in new cases to replenish funds missing from older matters.

Excessive fees was an issue in 2005 when the New York Court of Appeals removed then-Brooklyn Surrogate Michael R. Feinberg from the bench for routinely awarding 8 percent fees to the then-counsel for the Brooklyn public administrator, Louis R. Rosenthal. Mr. Rosenthal was suspended for two years and the Attorney General's Office has taken legal action to recover the excessive fees from him. No criminal charges were brought against either Mr. Feinberg or Mr. Rosenthal.

There is no suggestion in the indictment that Surrogate Holzman was aware that Mr. Lippman had charged excessive fees. In fact, in a statement distributed by the Bronx District Attorneys Office, prosecutors said that "in some instances" Mr. Lippman underreported his fees "in reports filed with the court to hide the excessive fees."

The indictment also accused Mr. Lippman of taking advances for his fees from the estates.

The guidelines do not specifically address the issue of "advance fees," but the practice in Manhattan for many years has been for counsel to the public administrator to submit for 60 percent of the fee when an accounting is filed and the remaining 40 percent when the decree is issued.

Mr. Richman vowed a vigorous defense, saying that the alleged criminal acts took place after the five-year statute of limitations had expired. The only way that those acts could be prosecuted, he said, would be if the position of "counsel to the public administrator" were to be considered a public officer, in which case the statute would run for 10 years. Given that the counsel position is created by statute, he said such a legal conclusion was unlikely.

Mr. Richman also said that to focus on five cases out of the roughly 1,000 that Mr. Lippman handled during the seven years covered by the indictment made it a "stretch" to maintain he had a criminal intent. He added that Mr. Lippman may have charged fees before he knew the size of an estate or the amount of work involved, but he returned the amounts when he realized the changed circumstances.

The counsel to the public administrator processes the estates of persons who die without a will and with no close relative to wrap up their affairs.

A joint statement issued yesterday by Bronx District Attorney Robert T. Johnson and Investigation Commissioner Rose Gill Hearn also asserted that Mr. Lippman had been tardy in filing accounting, resulting in estates "lingering for years."

@|Daniel Wise can be reached at dwise@alm.com.

Lawyer eyed by feds in corruption investigation of Bronx public administrator's office
BY Greg B. Smith,DAILY NEWS STAFF WRITER,Sunday, October 11th 2009, 4:00 AM
LINK

A longtime lawyer for the office that oversees estates of Bronx residents who die without wills is under investigation for using them as his personal ATMs, the Daily News has learned.

The city Department of Investigation and the FBI have targeted Michael Lippman, former counsel to the Bronx public administrator, two sources familiar with the probes said.

The DOI probe zeroes in on Lippman; the FBI is looking into Lippman and allegations of longstanding corruption in the Bronx public administrator's office.

"The state is going for larceny charges," said a source familiar with the probes. "The theory is that he took money without intending to perform the services. The feds are trying to put together a more sophisticated enterprise corruption case."

Court-appointed public administrators in each borough are supposed to find appropriate heirs when a person dies without a will - and distribute assets as quickly as possible. In recent years, this obscure office has been plagued by allegations of political insiders siphoning off money through excessive fees.

In the Bronx, the issue is Lippman's practice of pocketing hundreds of thousands of dollars in "advances" on anticipated fees, the sources said.

The accepted practice is for the lawyers to bill for work when the estate is closed, officials said.

In case after case, Lippman took money up front, then billed much later - in some cases, years after the case had been filed, the sources said.

Cases can drag on for years. The Bronx had 1,071 open cases with estates worth a total of $69.5 million as of 2007, the last figures available.

That made it hard to pin down what Lippman did to earn his fees, which are based on a sliding percentage of the estate's value.

The arrangement was quite lucrative. Between 2005 and April 2008, Lippman collected more than $1.5 million up front before questions arose about the practice.

The arrangement was discontinued in 2006; Lippman was terminated as counsel to the public administrator in April 2009. By then, he'd received advance fees on more than 200 cases that were not yet closed.

During that time, Lippman faced crushing debts, including more than $1 million in gambling losses, $600,000 in unpaid taxes, and foreclosure on a $400,000 mortgage, records show.

Investigators want to know why Lippman was able to get away with this for so long, despite repeated complaints from families who said he was siphoning off fees without documenting what he was doing.

Carol Eisen, who battled Lippman while trying to straighten out her aunt's $1.4 million estate, said Lippman demanded excessive fees with little explanation.

"It was just a criminal scene from day one," she said from her home in Florida. "Everybody had their hands in our pocket. Not only should they have to pay out of their money, but we're entitled all of the fees back. They were thieves."

Probers are looking into why Lippman's bosses, including Surrogate Court Judge Lee Holzman and former Bronx Public Administrator Esther Rodriguez, allowed Lippman to collect in advance.

Spokesmen for the DOI and the FBI declined to comment, as did Bronx District Attorney Robert Johnson, who is prosecuting the DOI probe. Probers have subpoenaed boxes of documents from the public administrator's office, sources said.

Lippman was forced to quit last spring when a new counsel was brought in and began looking into past billing practices, one source said.

Judge Holzman approved all of Lippman's fees. Rodriguez, the former Bronx public administrator, signed off on all the checks to Lippman until she was forced to resign in January 2006.

At the time, a vendor was busted for submitting fictional and inflated bills to her to inspect, clean and repair the homes of the dead.

Rodriguez could not be reached for comment.

Lippman's lawyer, Murray Richman, said Bronx prosecutors haven't told him what Lippman may have done.

"If the prosecutors believe they have wrongdoing, we'd be glad to sit down and discuss it," he said. "They elected not to discuss it."

gsmith@nydailynews.com

'Crook' Michael Lippman got what's coming to him, family of victim says
BY Brendan Brosh, DAILY NEWS STAFF WRITER, Friday, July 9th 2010, 4:00 AM

Michael Lippman's arrest is bringing peace to the family of one woman who, on her deathbed, told the Daily News he was a "crook."

Shortly before Lillian Cohen died last year, she said Lippman was bilking her sister out of money that was left to her by a friend.

"Michael - above everyone else - should have known that death wouldn't stop my mother from taking care of this," said Prissi Cohen, Lillian's daughter. "Now she is at peace."

Sara Schenendorf, Lillian's sister, had hired Lippman after she was left $130,000.

After two years of wrangling and legal bills, Cohen finally got the assets transferred to her sister after she threatened to report Lippman to the Bronx district attorney's office.

"She could barely talk, but she wanted to get the story out," said Prissi Cohen, who was buying a headstone for her mother's grave yesterday. "It doesn't undo the pain for the people who have suffered [but] at least it won't happen to others."

Michael Lippman, lawyer for Bronx Public Administrator, stole $300,000, prosecutors charge
BY Brendan Brosh, DAILY NEWS STAFF WRITER,July 8th 2010, 2:53 PM
LINK

His job was to help the living. Instead, a ruthless Bronx lawyer plundered $300,000 from the estates of the dead, prosecutors charge.

Lawyer Michael Lippman, counsel to the Bronx public administrator from 1983 through last year, surrendered yesterday to face charges of billing for work he never performed on five estates.

Lippman, whose shenanigans were first exposed by the Daily News last year, was arraigned in Bronx Supreme Court on charges that could put him in jail for up to 15 years.

Public administrators are supposed to find heirs when someone dies without a will, and then fairly distribute an estate's assets as quickly as possible.

The survivors are often vulnerable families unfamiliar with the intricacies of probate law.

The city Department of Investigation charged Lippman repeatedly took advance fees from the estates without court approval. In each case, the bill was either inflated or for work that was never done.

DOI Commissioner Rose Gill Hearn said Lippman used his position "to extract excessive and unearned fees from the estates of deceased Bronx residents."

He pleaded not guilty and was released without bail. His lawyer, Murray Richman, said the statute of limitations had expired on the charges of grand larceny, scheming to defraud and falsifying business records.

Lippman pocketed more than $1.5 million in upfront fees between 2005 and April 2008, before he was dogged with questions about the practice.

Records show that during that time, Lippman was drowning in debt - facing foreclosure on a $400,000 mortgage, $1 million in gambling losses and $600,000 in unpaid taxes.

Richman said the Bronx district attorney's office was meddling in a lawyer's ability to run his business.

"It puts a chilling effect on all attorneys charging fees because the district attorney has the opportunity to look over what fees can be charged," he said.

Lippman is expected back in court in October.

From Editor Betsy Combier:

But this news is not new. In 2008 there were several articles published in the major media pointing to the unethical, if not illegal, acts of the people highlighted above in 2010. New York State needs different leadership and definitely a different way to hold judges and court personnel accountable for their actions. We can and must do this.


City probing top Bronx court officials on heirs' 20M
BY Nancie L. Katz, DAILY NEWS STAFF WRITER
Sunday, July 20th 2008, 11:27 PM
LINK

The city has launched a probe of top court officials in the Bronx accused of improperly investing $20 million left behind by New Yorkers who died without wills, the Daily News has learned.

City Controller William Thompson has blasted Public Administrator John Raniolo for "financially irresponsible decisions" that tied up the assets of 37 estates and that taxpayers now have to cover through city payouts.

Sources close to Thompson said the matter had been referred to the city Department of Investigation.

"There's concern about the making and the magnitude of the investments," the source said. "Where is the due diligence here? It's mind-boggling."

A DOI spokeswoman confirmed the agency was "aware of the matter" but declined further comment.

Even though heirs couldn't get at their money, Surrogate Judge Lee Holzman let politically wired lawyers and accountants collect $2.1 million in fees.

Lawyer Michael Lippman, who helped get Holzman elected twice, took $1.9 million in fees before filing legally required affidavits saying what he did to earn them.

Heirs have been trying to get their loved ones' estates closed for years, yet Holzman never asked Lippman to provide explanations as to why the cases lingered so long. One began as far back as 1990, another in 1995.

Lippman told The News he considered the investments legal and that he did nothing wrong.

The public administrator is supposed to put assets in secure investments such as Treasury bills.

In 2005, former Public Administrator Esther Rodriguez handed the money to broker JB Hanauer & Co., which put the money in investments called auction-rate securities.

Auction-rate securities offer a slightly higher yield than the more conservative investments the public administrators are allowed to make, but the bonds depend on auctions by banks to be cashed. The market for auction-rate securities froze in February because of the credit crisis.

Raniolo continued the practice after Rodriguez resigned in disgrace in 2006.

Eric Siber, Hanauer's director of marketing and sales, said he considered the securities "relatively liquid." On Friday, JB Hanauer indicated that $825,000 of the $20million might be released to the public administrator this week.

Hanauer broker Jason Reback has been investing for Bronx public administrators for more than 15 years. Both Raniolo and Judge Holzman said they were unaware federal authorities had suspended Reback for 10 days in 2005 for unauthorized trades. Reback did not return calls.

nkatz@nydailynews.com


Commission on Judicial Conduct must send Lee Holzman packing
Editorials, Saturday, July 19th 2008,
LINK

Any judge who lets cronies mishandle $20 million belonging to the heirs of the dead deserves to be kicked off the bench.

Any judge who puts taxpayers on the hook for $20 million by letting pals wrongly invest people's money deserves to be kicked off the bench.

Any judge who awards large fees to a buddy without requiring the buddy to first explain what he did to earn the money deserves to be kicked off the bench.

Bronx Surrogate Judge Lee Holzman must go.

The state Commission on Judicial Conduct must open a probe leading to Holzman's removal from office.

The facts are not in dispute. The whole outrageous story is detailed in Sunday's Daily News by reporter Nancie L. Katz. The cast of characters is a sorry lot.

Top billing goes to Holzman, a creature of the Bronx Democratic organization who presides over the estates of the dead. The post is coveted among machine lawyers because the surrogate dispenses lucrative assignments to attorneys and accountants.

The surrogate also appoints the public administrator, who handles estates that have no wills. And the surrogate names a counsel, a private lawyer who gets fees for services.

It has long been a swamp, but some laws and rules are aimed at keeping the muck to a minimum. No matter. Holzman, his former and present public administrators, Esther Rodriguez and John Raniolo, and counsel Michael Lippman went out of bounds.

For starters, Rodriguez and Raniolo were supposed to put inheritance money in conservative investments like treasury bonds. Instead, they put $20 million from 37 estates into what are known as auction-rate securities.

These are like bonds, only riskier. And the market for them froze with the subprime crisis. So Holzman & Co. can't redeem them. Controller William Thompson has determined the city must cover the $20 million and take the securities in return. Let's hope trading rebounds someday.

Holzman was ultimately responsible for approving the investments. His claim that he "had no knowledge [of the investments] until there was a problem" condemns him.

The result: Holzman's crew has denied the heirs access to the money - while doing well for themselves. Lippman pocketed $1.9 million in fees. And, for quite some time, Holzman signed off on payments before Lippman documented his charges.

Boot him. Case closed.

Bomb-building 101

From a London courtroom comes a sobering reminder that the terror-bent hardly require a labyrinthine scheme to hijack airliners and fly them into skyscrapers in order to inflict unthinkable damage.

The Office of Attorney General Andrew Cuomo Is Accused Of Obstructing Justice

Former Executives' Convictions Upset Over AG's Failure to Turn Over Documents to Defense
Ruling is the latest of several setbacks for the state in the case
Noeleen G. Walder, New York Law Journal, July 09, 2010

A New York state judge has tossed out the felony convictions of two former Marsh & McLennan Cos. executives after finding that the state attorney general's office had failed to turn over to the defense potentially exculpatory evidence, including some 700,000 documents obtained during a related civil proceeding.

Observing that "the courts are charged with safeguarding the integrity of the adjudicative process and the public's confidence that verdicts are rationally based and achieved by means fair not foul," Manhattan Supreme Court Justice James A. Yates wrote in People v. Gilman, 4800-09, that the prosecutors' failure to exercise due diligence in searching out the material had "undermin[ed]" his "confidence in the verdict" that he had reached after a 10-month bench trial.

The ruling is the latest of several setbacks for the state in the case. In a statement, Richard Bamberger, a spokesman for Attorney General Andrew Cuomo, said, "We are reviewing the decision and intend to appeal." The office declined further comment citing sealing orders in the case.

The former Marsh executives, William Gilman, an executive marketing director, and Edward J. McNenney, global placement director, were charged in 2005 with 37 counts during a high-profile probe of anti-competitive practices in the insurance industry launched by then-Attorney General Eliot Spitzer. The case continued under Cuomo.

In 2008, Yates convicted each of a single count of restraining trade under the Donnelly Act, the state's antitrust statute. Other charges were dismissed or resulted in an acquittal.

Last year, the defendants moved to vacate the guilty verdict under CPL 440, arguing that evidence not made available to them had in several instances contradicted prosecutors' theory that the defendants helped to solicit fake bids from complicit insurance companies. In a partially redacted 25-page ruling, Yates granted their motion.

The prosecutors had claimed that Gilman and McNenney, along with six other Marsh brokers, participated in a multimillion-dollar price-fixing scheme in which Marsh employees told customers that they had solicited competitive bids for excess casualty insurance.

However, prosecutors said that in reality the defendants secured losing bids or "fake quotes" from accomplice insurers and then steered their customers to a predetermined winner.

In 2005, Marsh agreed to pay customers $850 million to settle a civil case brought by Spitzer in connection with the price-fixing scheme. However, the attorney general's office has had less luck with its criminal cases from the probe.

According to Bloomberg, Yates last October acquitted three other former Marsh officials after an 11-month bench trial. In November, he dismissed charges against three additional defendants at the request of Cuomo.

DEMANDS FOR DOCUMENTS

More than 20 million pages of documents were exchanged in the case against Gilman and McNenney.

According to Yates' ruling, the defense in 2006 formally requested that the attorney general's office produce "all exculpatory evidence, leads, and evidence favorable to all defendants" and "all exculpatory evidentiary material, including testimony before the grand jury," of cooperating witnesses and other named individuals.

The defense also made a formal demand for all documents from Liberty Mutual Insurance Co. "related to transactions specified as part of the prosecution," the decision says.

Four months before the trial began, lawyers in the attorney general's office told the court that they "would like to give [the defendants] everything, whether we are calling the witnesses or not."

"We don't want to be accused of hiding anything," prosecutors said, according to the ruling.

But the defendants accused the government of failing to turn over more than 700,000 pages of discovery that Liberty Mutual handed over in 2007 to the investment protection bureau during a civil trial against Liberty Mutual. The documents were disclosed during the criminal trial of the three Marsh executives acquitted by Yates.

The defense claimed the documents directly contradicted the testimony of two key prosecution witnesses and maintained that the Liberty Mutual files supported their theory that clients knew about the bidding process used by Marsh, which they said was standard industry practice.

Prosecutors insisted they did not review the files and stressed that the investor protection bureau was not working with the lawyers in the case against Gilman and McNenney.

However, Yates did not buy what he called the "theoretical argument" that "in the abstract," the two bureaus "are separate and distinct entities operating in disconnected spheres."

"[O]ne office, under the control of one prosecutor is authorized to prosecute Martin Act violations by civil and/or criminal prosecution. Nowhere in this statutory authority conferred upon the Attorney General in either the Executive Law or the General Business Law is there a division of authority," the judge wrote. "Most disturbing," he said, was the fact that he had been assured by prosecutors that they would hand over anything "of arguable relevance to the subject matter of the testimony," regardless of whether it was in the files of the civil or criminal division.

Thus, the judge said, the attorney general's office "had free access to information from Marsh and the carriers, but controlled defense access to the same materials."

In addition to the 700,000 documents, the judge also said the office should have turned over other evidence, including deposition testimony of certain cooperating witness in a related proceeding.

"While each item of evidence taken individually may present a reasonable possibility that the verdict would have been different, taken as a whole, the evidence raises not only a possibility, but a probability that its disclosure would have produced a different result," Yates concluded.

Gilman and McNenney were sentenced to 16 weekends in jail and 250 hours of community service, but that has been stayed pending their separate appeals in the Appellate Division, 1st Department.

In a statement, Richard L. Spinogatti of Proskauer Rose, who represented Gilman, said, "We are very pleased with Justice Yates' analysis and his decision vacating the conviction."

Robert J. Cleary of Proskauer also represented Gilman.

A spokesman from Marsh said that it would be inappropriate to comment since the company was not involved in the ruling.

Scott D. Devereaux of Cooley Godward Kronish in Palo Alto, Calif., represented McNenney. "We are very pleased by the decision," he said in an e-mail.

Assistant Attorney General Hannah Stith Long handled the response to the CPL 440 motion for Cuomo's office.

Elizabeth Nochlin, the lead prosecutor at trial and the only one mentioned in Yates' opinion, left the attorney general's office in January 2008.