Objection to Bill of Particulars Filed in U.S. v. Khouli et al.

The defendants have more than enough information.  So says the government’s 17 page objection to a bill of particulars filed by defendants in the case of United States v. Khouli et al.

Earlier this month co-defendants Joseph A. Lewis II and Salem Alshdaifat submitted a bill of particulars requesting detailed discovery from the prosecution.  The two were indicted last year in a New York federal district court in for their alleged roles in trafficking antiquities.  They want information from the prosecution about which ports were used to import the antiquities, what documents were provided to Customs, and which representations on Customs forms were false.  Mousa "Morris" Khouli, another co-defendant and an antiquities dealer, pleaded guilty to charges on April 18.

Assistant United States Attorney Karin Orenstein on Aprl 27 filed an objection to the bill of particulars, arguing “The defendants’ demands for particulars seek granular detail of the government’s proof, and the government has already provided more than the law requires. The Indictment and the discovery, which includes a verified civil complaint and multiple search warrants, provide the defendants with all the information they need to understand the specific acts of which they are accused.”

Attached to AUSA Orenstein’s objection is a sheet outlining the information that has been provided to the defense. It lists such items as bank records; search warrant affidavits concerning homes, emails, and businesses; postal records; UPS records; photographs of antiquities; Paypal records; travel records; customs documents; insurance documents; and Go Daddy accounts.

CONTACT: www.culturalheritagelawyer.com

Prosecutorial and Judicial Misconduct: case of Sholom Rubashkin

National Law Journal LINK

High court should hear 'Rubashkin' to consider overzealous DOJ and judge who was essentially on prosecution team.
High court should hear 'Rubashkin' to consider overzealous DOJ and judge who was essentially on prosecution team.

Alan Dershowitz and Ronald Rotunda
April 30, 2012

A Homeland Security Bus loaded with immigrants leaves the Agriprocessors Inc. plant

Lawyers for Sholom Rubashkin — Paul Clement and Nathan Lewin — filed last month a petition for writ of certiorari with the U.S. Supreme Court. Rubashkin is seeking relief from the Supreme Court because the U.S. Court of Appeals for the Eighth Circuit refused to consider evidence that Rubashkin first discovered after the trial that made the trial fundamentally unfair.

Indeed, during the past few years, a series of federal judges have criticized the U.S. Department of Justice for prosecutorial misconduct. Judge Emmet Sullivan of D.C. district court, who ordered a criminal investigation into the actions of prosecutors in the trial of former Alaska Senator Ted Stevens, suggested that the case reflected deeper problems at the Justice Department. Chief Judge Mark Wolf of the District of Massachusetts found that he regularly presided over cases where federal prosecutors withheld important evidence, about every other year for the past two decades.

It's happened again, but this time the judge herself is part of the problem rather than part of the solution. When Agriprocessors, an Iowa kosher processing plant, learned that the Immigration and Customs Enforcement Agency (ICE) was concerned about its hiring practices and planned a raid, it hired a law firm to contact ICE and offered to cooperate with the authorities in terminating undocumented workers. ICE did not reply. Instead, on May 12, 2008, it launched a highly publicized raid, with about 600 agents in riot gear, accompanied by a Blackhawk helicopter. Agents arrested 389 workers.

Five months later, the government arrested the plant's manager, Sholom Rubashkin, on charges of harboring illegal immigrants, but ICE's case had problems. For example, it turned out that an undercover ICE agent had twice tried to secure employment at this plant, but he was turned away because he did not have the proper papers.

Sholom Rubashkin

It would not do to have such a dramatic raid and nothing to show for it. The Justice Department filed seven superseding indictments charging bank fraud. The indictments included a creative theory — that Rubashkin falsely certified to the bank that Agriprocessors was complying with all the laws even though it was employing undocumented aliens. The federal jury did convict on the bank fraud charges, and the federal government dropped all immigration charges. In the meantime, Iowa indicted Rubashkin for employing child labor. The state initially alleged 9,311 offenses and went to trial on only 83; the trial judge limited that number to 67, and the jury acquitted on everything.

Federal prosecutors recommended life imprisonment. After widespread criticism of such a harsh sentence by many people (including six former U.S. attorneys general), the government asked for a 25-year sentence. Judge Linda Reade, the trial judge, imposed 27 years instead.

But Reade did more than impose a disproportionate sentence. After Rubashkin's conviction and sentence, defense lawyers learned that Reade, over a six-month period, had been actively engaged in planning the Agriprocessors raid. E-mails and affidavits showed that, long before the raid occurred, Reade met with ICE agents to discuss "charging strategies, numbers of anticipated arrests and prosecutions, logistics, the movement of detainees, and other issues related" to the investigation and operation. At one meeting, which law-enforcement personnel attended at the judge's request, the judge stated that she was "willing to support the operation in any way possible, to include staffing and scheduling." She was essentially part of the prosecution team.

A March 20, 2008, e-mail states: "The Chief Judge has indicated she wants a final game plan in two weeks (April 4)." Eleven days later, another e-mail discloses that the assistant U.S. attorney (AUSA) would meet with Reade on April 4, and the judge wanted "a briefing on how the operation will be conducted."

The AUSA wanted a document "for his presentation to the judge," because of the "requirement to brief the judge." The actual raid was planned "[i]n coordination" with "the United States District Court in the Northern District of Iowa." The trial judge, ICE and the AUSA had "a weekly operations/planning meeting" about this upcoming case.

The judge and the prosecutors should have notified Rubashkin's lawyers that she had participated in planning the raid so that they could move to recuse her. Failure to do so was prosecutorial and judicial misconduct.

The judge made herself a witness involving the events of the disqualification issue and then said — unsurprisingly — that she would rule in favor of her version of events, rather than the version suggested by the documents and the affidavits. She judged her own credibility even though the federal statute provides that, when a litigant alleges prejudice by a judge, "another judge shall be assigned to hear such proceeding." Case law provides that "the court must accept all facts included in the affidavit as true." But she did not do that, either.

On appeal, the Eighth Circuit affirmed the conviction and refused to disqualify the judge because, it said (applying a rule unique to the Eighth Circuit) the defendant should have filed his motion earlier, and it was not convinced that the newly discovered evidence "probably will result in an acquittal upon retrial."

The Supreme Court should decide to hear this case and use it as a vehicle to examine cozy relations between a prosecution that was too zealous and a judge who was too involved in pretrial prosecution strategies. The Iowa legal director of the American Civil Liberties Union, one of the groups that filed an amicus brief on behalf of Rubashkin, warned that the judge's involvement with the prosecution "immediately gave the appearance of unfairness." It was more than appearance. It was actual unfairness.

Alan Dershowitz is a professor of law at Harvard University. Ronald Rotunda is a professor of law at Chapman University. Rotunda filed an amicus brief in the U.S. Court of Appeals for the Eighth Circuit on behalf of the National Association of Criminal Defense Lawyers, which various professors and practitioners, including Dershowitz, joined.

Homeland Security's Seize and Send Policy on Display at Repatriation Ceremony

Artifact returned to Italy by ICE.
Courtesy ICE

Immigration and Customs Enforcement (ICE) this week announced successful efforts to combat crime in the United States.  In the last few days, ICE's Homeland Security Investigations (HSI) directorate headlined these results:

• "9 suspects arrested in HSI probe targeting Fresno-area phony document mills"

• "637 gang members and associates arrested during Project Nefarious" 

• "5 indicted for allegedly selling counterfeit goods" 

Yesterday, however, the federal agency announced something other than arrests or indictments.  An April 26, 2012 press release proclaimed, "ICE returns stolen and looted art and antiquities to Italy."

While many of ICE's powerful investigative arms probe violations of federal law and pursue justice through the criminal court system, the Cultural Property, Art and Antiquities Program at HSI continues to repossess artifacts, hold repatriation ceremonies, and ship potential court evidence overseas. Arrests are infrequently announced, and indictments for violating federal smuggling, theft, false statement, or wire transfer laws are rare.

The contrast between ICE's typical approach to cultural property crimes and its customary handling of forfeited documents, human trafficking, counterfeit goods, and other illegal activities is striking.  A few of this week's press releases illustrate:

• After arresting the nine men for trafficking in forfeiting documents, special agent Clark Settles said that the  "goal in these investigations is to identify and ultimately dismantle the criminal organizations behind these highly lucrative schemes."

• After 637 gang members and associates were arrested, HSI Executive Associate Director James Dinkins announced that "[t]he goal of Project Nefarious was to identify, locate, arrest, prosecute and remove gang members and associates affiliated with human smuggling and trafficking organizations."

• After a grand jury indicted five people for selling counterfeit goods, ICE announced that it "plays a leading role in targeting criminal organizations responsible for producing, smuggling and distributing counterfeit products. HSI focuses not only on keeping counterfeit products off our streets, but also on dismantling the criminal organizations behind such illicit activity."

Marble sculpture returned to Italy.
Courtesy ICE

But yesterday's press announcement proclaiming the repatriation of looted and stolen antiquities to Italy simply describes a "ceremony" to return "[t]wo 2,000-year-old ceramic vessels, one Roman marble sculpture, one Renaissance painting and three music sheets from choir books dating back to the 13th century ...."  Authorities did not announce any arrests or indictments despite descriptions of criminal activity by the use of terms such as "looted," "illegally imported," "smuggled," " illicit trafficking," "organized crime," and "stolen."

In other criminal investigations, HSI agents investigate cases, work with prosecutors to develop and sift through evidence, present the results to grand jurors, and hold lawbreakers accountable.  In illegal antiquities trafficking cases, however, Homeland Security Secretary Janet Napolitano said it best during Thursday's ceremony, "We will continue to work to ensure cultural artifacts and treasures that were stolen and entered this country illegally are recovered and returned to their rightful home nations."

This "seize and send" strategy requires rethinking to coincide with the "investigate and indict" mission that other HSI investigations pursue to dismantle and deter criminal activity.

ICE Director John Morton said yesterday that "ICE is serious about reining in art and antiquity thieves, smugglers, and traffickers."  Yet antiquities thieves, smugglers, and traffickers must be brought to trial.  And while ICE poignantly warned in Thursday's press release that anyone "involved in the illicit trafficking of cultural property, art and antiquities can face prison terms of up to 20 years, fines and possible restitution to purchasers of the items," criminals must first be indicted before they can face such consequences in a U.S. district court.  Only then can the "antiquity thieves, smugglers, and traffickers" who are targeted by ICE be held to account for violating federal criminal laws.

CONTACT: www.culturalheritagelawyer.com

Important New Decisions - April 27, 2012

Decision to  Impose a Suny Cap on Cost of Child’s College Education must Be Determined on a Case-by-case Basis, Considering Parties' Means and Child's Educational Needs.


In Tishman v Bogatin,--- N.Y.S.2d ----, 2012 WL 1392995 (N.Y.A.D. 1 Dept.) the Appellate Division affirmed an order which directed defendant to pay 40% of the cost of the parties' older child's college education. It held that the motion court properly rejected defendant's contention that a so-called SUNY cap should be imposed on his obligation to contribute to the costs of the child's college education-that is, that his contribution should be based on the cost of an education at a college in the State University of New York system, because plaintiff failed to show that the child's needs cannot be met adequately at a SUNY college. Whether to impose a SUNY cap is determined on a case-by-case basis, considering the parties' means and the child's educational needs. A rule that, absent unusual circumstances, a parent's obligation is limited to the maximum SUNY tuition would be inconsistent with Domestic  Relations Law  240(1-b)(c)(7), which provides that a court may award educational expenses where it determines, "having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires," that the education sought to be paid for is appropriate.   The record supported the court's direction that defendant pay 40% of the costs of the parties' older child's education at a private college. The child attended an elite public high school, his reasons for preferring the private college over SUNY schools were sound, both parties attended private college and private law school, and both parties had the resources to pay the tuition at the private college where the child was enrolled




Where Judgment Does Not Accurately Incorporate the Provisions of a Stipulation of Settlement the Stipulation Prevails
                                                      
In  Ayrovainen v Ayrovainen, --- N.Y.S.2d ----, 2012 WL 1322433 (N.Y.A.D. 2 Dept.) the  Appellate Division observed that when a party alleges that a judgment does not accurately incorporate the provisions of a stipulation of settlement, the preferred remedy is to move in the trial court to resettle or vacate the judgment, rather than to appeal. Nevertheless, this Court may address the issue and, upon examining the stipulation and the judgment appealed from in this matter, it found that the latter did not conform to the former in several key respects including: the percentage of the college expenses of the parties' children for which the defendant was responsible, the date upon which the defendant's obligation to maintain the former marital residence would cease, under what conditions the defendant's maintenance obligation would terminate, and the manner in which the parties would claim their youngest child as a tax exemption. In addition, the judgment conflicted with the stipulation with respect to the defendant's responsibility to maintain a life insurance policy with the plaintiff as a beneficiary, whether the parties agreed that there would be a cost of living increase for the defendant's child support obligation, and whether the defendant was to assist the plaintiff with a potential sale of certain real property located in Livingston Manor. It remitted the matter to the Supreme Court to issue a corrected judgment which accurately reflects the terms of the parties' stipulation entered on the record in open court. .


Supreme Court Permits Amendment of Complaint to Add Irretrievable Breakdown Ground under  DRL § 170 (7) Rejecting Strack and Schiffer Decisions                                                     


In Palermo v Palermo, 2011 WL 7711557 (N.Y.Sup.), 2011 N.Y. Slip Op. 52506(U), the couple were married in 1977. In September 2000, the wife moved out of the marital residence. In 2001, the wife commenced a divorce action against the husband on grounds of cruel and inhuman treatment and a jury returned a verdict of no cause for action. In February 2011, the wife again filed a verified complaint, this time on the grounds that the marital relationship had broken down for a period in excess of six months. The husband answered, denying the allegations, and asserting an affirmative defense that the couple had lived separate and apart for a period of at least 10 years. The husband moved to dismiss the wife's complaint, arguing that the statute of limitations had expired on her claims, that they were barred by res judicata, and that the complaint failed to state a cause of action. The wife cross-moved to replead the claim under DRL §  170(7) to include the specific allegation that the marriage was irretrievably broken for a period of greater than six months. Because amendments to pleadings at the early stages of litigation are widely favored, the motion to amend and serve the complaint was granted. CPLR  3025(b).  The Court held that the verified statement of "irretrievable breakdown" of a marriage, in itself, without a trial, provided the necessary predicate to granting a divorce under the Domestic Relations Law. It examined the history of New York’s no fault divorce law. It observed that in Gleason v. Gleason, 26 N.Y.2d 28 (1970) the Court of Appeals pointed out that the legislature recognized "that it is socially and morally undesirable to compel a couple whose marriage is dead to remain subject to its bond."  The Gleason decision is important to the current question because it recognizes that the state legislature could fashion divorce remedies based on both parties consent to end their marriage without further testimony or evidence as to their private intentions. In this case, the question was whether the state legislature provided the same relief-divorce-based on the intentions of just one of the two partners to the marriage, without any inquiry into their intent or conduct by enacting DRL 170(7). It pointed out that under this statute the legislature no longer requires evidence of the "mutual contemporaneous intention" as required by the two previous no-fault grounds. Under DRL  170(7), one partner alone can declare the marriage is "dead" if sworn to under oath, in accordance with the statutory language. While a strict reading of the statute suggests that the declaration alone provides the basis for a divorce, the husband contended that he was entitled to a trial on this provision relying on  Strack v. Strack, 31 Misc.2d 258 (Sup.Ct. Essex Cty.2011), where, citing the Domestic Relations Law provision for a right to trial by jury, the court concluded that te legislature failed to include anything in the Domestic Relations Law   170(7) to suggest that the grounds contained therein are exempt from this right  to trial. Had it intended to abolish the right to a trial for the grounds  contained in the Domestic Relations Law, it would explicitly have done so. The court concluded that the question of whether a breakdown is irretrievable is a question of fact to be determined at trial.  In view of the Strack decision, there was an apparent collision of the no-fault entitlement under DRL 170(7), and the trial right under DRL 173. The court  resolved the statutory contradiction in light of the history and object of the enactment, in light of the facts which were found by the legislature to prompt its enactment. Malkin v. Wilkins, 22 A.D.2d 497 (4th Dep't 1965).   The legislative history of New York's newest no-fault statute demonstrates the legislature's recognition of this "evil" and the proposed "remedy." It is apparent that the legislature intended to provide estranged couples a simple and incontestable basis for ending their marriage, and avoid the squabbling over issues that flow from the other objective grounds in DRL 170.   In view of this intent, the court declined to follow the logic or holding of Strack. The court concurred with  A.C. v. D.R., 32 Misc.3d 293 (Sup. Cty. Nassau Cty.2011) that there is "no defense to the no-fault grounds."    This court also considered the opinion in  Schiffer v. Schiffer, 33 Misc.3d 795 (Sup.Ct. Duchess Cty.2011), which followed the logic of Strack, holding that the no-fault assertion under DRL § 170(7) was subject to the trial requirement. This court finds little in Schiffer that differed from the analysis in Strack and declines to follow it. The Schiffer court suggested that what is required, as a matter of fact finding under DRL  170(7), is that the relationship be irretrievably broken and a statement under oath by the party seeking the divorce. However, there is no "and" connecting the sworn statement provision and the " "irretrievable breakdown for six months" assertion. The legislature used another connector: "provided." The use of this word-" "provided"-rather than "and" means that the "irretrievable breakdown for six months" must be accepted as true "provided" one party swears that it is true. The court in Schiffer also raised a "due process" argument, claiming that the courts should not deprive a spouse of the right to trial on irretrievable breakdown and that to hold otherwise reduces the court to a "rubber stamp" when presented with a claim under DRL  170(7). This suggestion ignores the Court of Appeals directive in Gleason:  [R]ights growing out of the [marriage] relationship may be modified or abolished  by the Legislature without violating the provisions of the Federal or State  Constitution which forbid the taking of life, liberty or property without due  process of law.    Gleason v. Gleason, 26 N.Y.2d 28 (1970); see also  A.C. v. D.R., 32 Misc.3d 293, 306 (Sup. Cty. Nassau Cty.2011) (reasserting compelling conclusion of Gleason that there is no due process right to any defense in matters involving the dissolution of marriages).For these reasons, this court declined to follow Schiffer. 
   For these reasons, the defendant's motion to dismiss the complaint, because it
failed to state a cause of action, was denied. The court also denied the motion to dismiss for violation of the statute of limitations. There is no statute of limitations under DRL s 170(7) because the cause of action only arises at the time the party swears that the marriage has been irretrievably broken for a period in excess of six months. A cause does not accrue until there is "a legal right" to be enforced.  Hahn Automotive v. Amer. Zurish Ins. Co., 81 AD3d 1331 (4th Dep't 2011). The cause of action for divorce on the basis of irretrievable breakdown accrues at the time of the attestation by one partner and not sooner. The statute of limitations has no pertinence to a cause of action that arises at the time of the filing of the complaint. Finally, the court denied the defendant's motion to dismiss based on res judicata. Res judicata does not preclude the claim under DRL 170(7) because it is based on a different theory and cause of action. The jury finding that no cause of action for cruel and inhuman treatment existed a decade ago only applies to the facts before the jury at that time. It does not preclude this claim for a divorce on the grounds that one party has sworn that the marriage has been irretrievably broken for a period of excess six months.






Supreme Court Permits Amendment of Complaint to Add Irretrievable Breakdown Ground under  DRL § 170(7) Even Though Amendment States That the Act  
Shall Apply to Matrimonial Actions Commenced after the Effective Date




In G.C v G.C.,  2012 WL 1292729 (N.Y.Sup.), 2012 N.Y. Slip Op. 50653(U) Supreme Court permitted an amendment to a divorce complaint to add new causes of action under the Domestic Relations Law which arose after the filing of the complaint. The plaintiff brought a divorce action prior to October 10, 2010. He alleged that his wife had engaged in cruel and inhuman treatment toward him. The wife answered the complaint, denying the specific allegations. After the commencement, the parties lived apart. The wife moved to Ohio. During discussions over the status of the case, the wife made it clear that she would contest the grounds for the divorce. The husband moved to amend the complaint to assert two new grounds: a ground under Domestic Relations Law § 170(2) for abandonment and a claim under Domestic Relations Law § 170(7) for an "irretrievably broken" marriage. The wife opposed the abandonment amendment, arguing that the husband can not allege abandonment when it occurred during a year after the filing of complaint and that its assertion, now, after the action has been pending for more than two years, is untimely and prejudicial. She opposed he amendment on the grounds of under Domestic Relations Law § 170(7) because the complaint was filed prior to the effective date of the change.
Supreme Court observed that amendments were both made pursuant to CPLR 3025(b), which provides that amendments should be freely given or a complaint may be supplemented "by setting forth additional or subsequent transactions or occurrences, at any time by leave of court."CPLR 3025(b). An avalanche of authority directs that the leave to amend a complaint should be "freely granted" unless the proposed amendment is clearly and patently insufficient on its face.  Williams v. Ludlow's Sand & Gravel Co., 122 A.D.2d 612 (4th Dep't 1986).  A cause of action under Domestic Relations Law s 170(2) requires  allegations that a spouse's actual physical departure from the marital residence for one year is unjustified, voluntary, without consent of the plaintiff spouse, and with the intention of the departing spouse not to return. The amended complaint, on its face, met this minimal pleading requirement: it alleged that the wife left the marital residence in 2009, has not returned and her leaving was
without justification. The pleading stated the cause of action.  Under the weight of cases favoring "freely granting" amendments to complaint, the cause of action for abandonment, although it accrued while this action had been pending, was properly pleaded and did not lack merit.
 The Court pointed out that in October, 2010, the Legislature added a statutory
change to the Domestic Relations Law which created "no-fault divorce" and permitted one party to be granted the divorce upon a sworn declaration that the marriage was "irretrievably broken for a period in excess of six months" and the parties had agreed on all the issues related to support and equitable distribution The wife correctly noted that the statutory amendment states that the "act ... shall apply to matrimonial actions commenced after the effective date."It was  undisputed that the effective date was October 12, 2010. The clear intention of the Legislature, based on this language, was to not allow litigants to simply
amend their complaints, after the amendment took effect, and allow those claims to proceed to adjudication on the basis of the new "no-fault" allegations by claiming that the six months of "irretrievable breakdown" included time before the effective date of the amendment.  Nevertheless, the court granted his motion noting that the husband was not seeking any relief other than that sought in the original complaint: a divorce and accompanying property distribution. By virtue of the statutory change, the husband, having waited six months after its effective date, could now meet the time requirement of six months because all of the time accrued after the amendment took effect. The court reasoned that the husbands motion did not violate the language of the statute or the intention of the Legislature. Instead, he sought to invoke what the Legislature extended to him: a cause of action that has ripened because more than six months have passed since the date of the amendment and during that time, the husband swears that his marriage has been irretrievably broken. It pointed out that in  Gleason v. Gleason, 26 N.Y.2d 28 (1970), the Court held that a statutory amendment, which added subdivision (4) to Section 170 of the Domestic  Relations Law, could be used to permit an uncontested divorce to incorporate a separation agreement signed before the effective date of the statutory change. The Court of Appeals, in resolving the issue of the application of a new ground for divorce to an agreement, signed before the effective date of new statute, could not ignore the beneficial aspect of the statute and its goal of reducing tensions in obtaining final judgments in matrimonial cases. In this case, the change created by the addition of Section 170(7) paralleled the statutory change in Gleason v. Gleason: it simply provides another ground for a divorce. The new statute does not create greater rights for a spouse in a divorce. The no-fault change provides a speedy method for establishing the grounds and does not obviate the wife's right to insist on a trial regarding any and all financial issues related to the couple. The new change gives neither party any greater property rights. For these reasons, the language of CPLR 3025(b), the lack of any prejudice to the wife's property rights and the judicial command to "freely grant" such applications weigh heavily in favor of granting this motion.  The motion to amend to add claims under Section 170(4) and 170(7) was granted.

Not Guilty Verdict in Crane Collapse Trial

April 26, 2012

Crane Owner Acquitted of All Charges in 2008 Collapse

By JOHN ELIGON, NY TIMES

James Lomma

The owner of a crane company was acquitted on Thursday of all charges in connection with the collapse of a tower crane in Manhattan nearly four years ago that killed two people.

Justice Daniel P. Conviser of State Supreme Court in Manhattan, who heard the case without a jury, gave no explanation as he declared the owner, James F. Lomma, and his companies not guilty of all four charges they faced, the most serious of which was second-degree manslaughter.

The family of the two construction workers who died, Donald C. Leo and Ramadan Kurtaj, reacted with dismay. 

“Wow,” whispered Xhevahire Sinanaj, Mr. Kurtaj’s cousin, from the front row of the gallery after Justice Conviser finished reading the verdict. “Are you kidding me? Everything.”

The acquittal underscored the difficulty of proving criminal liability in construction accidents, especially when the city and others are accused of mistakes in oversight and regulation that lead to the fatal episodes.

The prosecution against Mr. Lomma, the owner of New York Crane and Equipment Corporation, was centered on the notion that he had put profit motive ahead of safety, which led to the collapse. A former employee of Mr. Lomma's had already pleaded guilty for his role in the case, and testified at trial.

The collapse of the crane at 91st Street and First Avenue occurred on May 30, 2008, just two months after another fatal crane accident on Manhattan’s East Side. In the first accident, which killed seven people, William Rapetti, a rigging contractor, was tried but acquitted of manslaughter charges two years ago.

Mr. Lomma showed no emotion as the verdict was read, but afterward, he smiled and embraced his family in the courtroom. He left without speaking to reporters, and as he strode down the sidewalk, he exchanged pleasantries with his lawyers.

Relatives and lawyers of the two dead workers angrily decried the judge’s verdict outside the courtroom, saying the decision condoned the negligence of construction managers, and would put construction workers’ lives in jeopardy.

“It’s a license to kill,” Maria Leo, Mr. Leo’s mother, said outside the courthouse. She added that construction managers “don’t have to care about the construction workers.”

A man who answered the telephone at Justice Conviser’s office said that the judge would not comment on his verdict.

Mr. Lomma and his companies had faced charges of second-degree manslaughter, assault, criminally negligent homicide and reckless endangerment.

During the two-month-long trial, prosecutors had said that Mr. Lomma relied on an unqualified Chinese company to make repairs to the crane, prosecutors argued, because the company offered a low price and quick turnaround.

Tibor Varganyi, a former employee of Mr. Lomma’s, pleaded guilty to criminally negligent homicide in October, admitting that he had declined to contract the repair work with two United States companies because Mr. Lomma thought they would have taken too long to complete the job. Testifying at the trial, Mr. Varganyi repeated that assertion, and said that he struggled to measure key components of the crane’s turntable that the Chinese company, RTR, needed to repair it.

The defense had contended that the collapse was not the result of shoddy welding by the Chinese company. Rather, it happened because of a heavy load hoisted by the crane’s operator. That load caused the crane’s line to snap and sent the crane into imbalance.

The family and lawyers for the victims criticized the defense for what they said was blaming the crane operator, Mr. Leo, for the accident.

“My son is not here to defend himself,” Ms. Leo said.

Mr. Leo’s father, also Donald Leo, was himself a crane operator and said he was disappointed with the verdict.

“I don’t know how we can come to this conclusion right now,” he said. “I’m in shock.”

The families still have a civil lawsuit pending against Mr. Lomma, his companies and the city. 

The verdict did not affect the civil case, said Susan Karten, the lawyer for Mr. Kurtaj’s family.

The standard for proof in a civil case, Ms. Karten said, was a “much lower standard, and we have many more defendants.”

In a statement, the Manhattan district attorney, Cyrus R. Vance Jr., said that “although we are disappointed with the judge’s verdict, each case we have brought in this area has put increased scrutiny on the construction industry as a whole, and has had a cascading effect on safety practices.

 

“Construction companies must do everything in their power to protect the safety of workers and the thousands of New Yorkers who live near or walk by a construction site every day," he continued. "The tragic deaths of two young men in this case showed the serious and fatal consequences that can result when profit is put ahead of safety.”

 

 

A Manhattan judge has acquitted crane owner James Lomma in a bench trial for the deadly collapse

 

LINK

A construction crane owner was acquitted of manslaughter and all other charges Thursday in the May 2008 collapse of a 200-foot-tall rig that snapped apart, killed two workers and fueled concerns about crane safety.

James Lomma sat expressionless and looking frozen as a judge announced his verdict in the only criminal trial stemming from the accident on Manhattan's Upper East Side. Lomma chose not to have a jury in the two-month trial.

The slain workers' relatives shook their heads as Lomma and his two companies were acquitted. They and their lawyers called the verdict an injustice and an alarming signal for the safety of those who work and live around cranes.

Lomma's lawyers had said the case misconstrued an accident as a crime and wrongly blamed him for it. One of them, Paul Shechtman, called the outcome "a bittersweet day because it remains true that two young men were killed in a crane accident."

"But a conscientious judge found rightly that the fault was not Jimmy Lomma's," said Shechtman, who represented Lomma's companies, which were acquitted of the same charges. The attorney who represented Lomma, Andrew M. Lankler, declined to comment.

The case marked Manhattan prosecutors' second try at holding someone criminally responsible for two deadly crane collapses that came within two months of each other in 2008. Together, the fallen cranes killed nine people and spurred new safety measures in New York and in some other cities — scrutiny recently renewed after another Manhattan crane collapse killed a worker this month.

"Although we are disappointed with the judge's verdict, each case we have brought in this area has put increased scrutiny on the construction industry as a whole and has had a cascading effect on safety practices," Manhattan District Attorney Cyrus R. Vance Jr. said in a statement.

The crane was starting work on the 14th floor of what was to be a 32-story apartment building when the top portions of the rig came off, crashed into a building across the street and plummeted to the ground.

The crane operator, Donald C. Leo, 30, died after nearly being decapitated. Ramadan Kurtaj, 27, a sewer company employee who was working on the ground, was pulled from the wreckage and died at a hospital.

"The judge took a knife to our family's heart by letting this man walk away," said Kurtaj's cousin, Xhevahire Kurtaj-Sinanaj.

Prosecutors said the crane fell because Lomma had gotten a bargain-basement welding job to repair a crucial component: the turntable, which lets the upper parts of the rig swivel.

Lomma and mechanic Tibor Varganyi got estimates from known manufacturers. But to save money and repair time on a crane Lomma rented out for $50,000 a month, they instead hired a little-known Chinese company over the Internet, even after the company expressed reservations to Varganyi about its ability to do the job, according to prosecutors and testimony at the trial. Lomma didn't follow city inspectors' requirements for the repair, and the weld ultimately was too weak and poorly done to handle the crane's work, prosecutors said.

Varganyi, who pleaded guilty last year to criminally negligent homicide, testified that he was told Lomma wanted to save time and money. Varganyi is due to be sentenced in May.

The weld was in use for a month before, according to investigators, it failed and sent the crane's upper parts flying.

"The tragic deaths of two young men in this case showed the serious and fatal consequences that can result when profit is put ahead of safety," Vance said Thursday.

Lomma's lawyers said that he had gotten the repair done and tested responsibly — and that regardless, it didn't cause the collapse. The weld was strong enough for its workload, and it broke because the crane fell, not vice versa, according to the defense lawyers and their engineering experts.

By the defense account, the crane toppled because Leo let the heavy "headache ball" — the ball that weights the line used to hoist materials — get reeled into the tip of the crane, a problem known in the industry as "two-blocking."

With the crane at a fairly high angle that day, the impact of the ball sent the crane's long arm over backward and caused the collapse, the defense said.

Prosecutors "missed the actual cause of the accident because they had blinders on. Mr. Lomma (and his companies) acted properly," Lomma lawyer James Kim said in an opening statement.

State Supreme Court Justice Daniel P. Conviser announced his verdict but didn't explain his reasoning, as some judges choose to do.

The dead workers' families, who are suing Lomma and others, blasted the idea that the operator played a part in the collapse.

"It's just another low blow," said Leo's mother, Maria. "They blamed my son . ... How does this happen?"

In the earlier collapse, in March 2008, prosecutors charged a crane rigger with manslaughter and other counts. Another judge acquitted the rigger of all of them in 2010.