Howard R. Poch and Lance Luckow Sued For Legal Malpractice

Schlam Stone & Dolan, LLP v Howard R. Poch

2013 NY Slip Op 51176(U)

Decided on July 9, 2013

Supreme Court, New York County

Hagler, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 9, 2013 

Supreme Court, New York County

Schlam Stone & Dolan, LLP, as assignee of both RACHEL ARFA and ALEXANDER SHPIGEL, Plaintiffs,  against Howard R. Poch, HOWARD POCH, P.C., a/k/a HOWARD R. POCH ESQUIRE & ASSOCIATES, P.C., POCH & LUCKOW, P.C., and LANCE LUCKOW, Defendants.

105769/11 
 
Plaintiff represented by: Hitchcock & Cummings, LLP, by Christopher P. Hitchcock, Esq., 120 West 45th Street, Suite 405, New York, NY 10036; Telephone: 212-688-3025 

Respondent/Defendant represented by: McManus & Richter, P.C., by Peter D. Suglia, Esq., 48 Wall Street, 25th Floor, New York, NY 10005; Telephone: 212-425-3100 

Shlomo S. Hagler, J.

In this legal malpractice action, plaintiff Schlam Stone & Dolan, LLP, ("Schlam Stone" or "plaintiff") as assignee of both Rachel Arfa ("Arfa") and Alexander Shpigel ("Shpigel") move for an order pursuant to CPLR § 3212 granting them partial summary judgment on the issue of liability. Defendants Howard R. Poch ("Poch"), Howard Poch, P.C., a/k/a Howard R. Poch Esquire & Associates, P.C., Poch & Luckow, P.C., and Lance Luckow ( collectively, "defendants") oppose the motion. 

Background

Plaintiff is a law firm which obtained an "Assignment of Malpractice Claims Held By Rachel L. Arfa and Alexander Shpigel Against Attorney Howard Poch to Schlam Stone & Dolan LLP," dated December 13, 2010 ("the Assignment").^[FN1] (Exhibit "A" to the Affirmation of Christopher B. Hitchcock, Esq., dated October 21, 2011, in Support of the Motion ["Hitchcock Aff.].) By virtue of the Assignment, Arfa and Shpigel assigned their claims against Poch to Schlam Stone. [*2]

Arfa and Shpigel were members of various entities that owned and managed various properties in the Bronx, New York. They were the sole members and owners of Ocelot Capital Management LLC ("OCM"). (Exhibit "A" attached to the Affidavit of Howard R. Poch, sworn to on December 23, 2011, in Opposition to the Motion ["Poch Aff."].) OCM partnered with Eldan-Tech Inc. ("Eldan") to form Ocelot Portfolio Holdings LLC ("Ocelot Portfolio") to pursue real estate ventures. Eldan retained an eighty percent interest and OCM had a twenty percent interest in Ocelot Portfolio. However, OCM was the managing member of Ocelot Portfolio. (Id.) Ocelot Portfolio was sole member and owner of entities known as OCG I, LLC, ("OCG I") and OCG V, LLC ("OCG V"). OCG I owned 1268 Stratford Avenue, Bronx, New York, and OCG V owned 1524 Leland Avenue, Bronx, New York. (Exhibit "B" attached to the Poch Aff.) Ocelot Properties Management, Inc. ("OPM"), was the entity that managed the properties for OCG I and OCG V. Ocelot Capital Group, LLC ("OCG") owned OPM, which was controlled solely by Arfa and Shpigel. (Exhibit "C" attached to the Poch Aff.)

Arfa and Shpigel, on behalf of OPM, hired a retinue of people including senior officers Eytan Shafir ("Shafir"), who was the vice-president and chief of operations, Aryeh Spigel (Shpigel's brother) ("Aryeh"), and Andrew Schwab ("Schwab"), general counsel, to manage their portfolio of buildings. Valentino Mendez ("Mendez" ) acted as an agent and direct contact for processing litigation matters. Arfa and Shpigel delegated the day-to-day management of the properties to them. However, Arfa met regularly with Shafir to discuss certain matters including retaining counsel to efficiently handle their landlord-tenant litigation. Arfa and Shpigel also authorized Shafir to interview and retain counsel for the above purpose.

In late 2007, Shafir had discussions with Poch to retain him as OCM's landlord-tenant counsel. (Exhibit "E" attached to the Poch Aff.) The negotiations continued in the beginning of 2008, when the parties finally agreed via e-mail to Poch's retention at $5,500 per month to handle all of OCM's landlord-tenant disputes. (Exhibit "G" attached to the Poch Aff.) However, no formal written retainer agreement was executed by the parties.

Poch then took over the old inventory of cases and started new ones. The custom and practice between the parties was that Poch communicated with Mendez and Aryeh on these cases. (Exhibits "H," "I," and "M" attached to the Poch Aff.) As part of his duties, Poch defended the various OCG entities in proceedings in Housing Court that the Department of Housing and Preservation and Development of the City of New York ("HPD") brought against them to repair certain violations in various buildings ("HP Proceedings"). Poch settled these HP Proceedings with consent orders requiring payment to HPD of civil penalties and fines by a date certain which would increase ten-fold if not timely paid. Poch advised Mendez and Aryeh of at least four defaults in payment and resulting increased penalties. (Exhibits "O" and "P" attached to the Poch Aff.)

Poch had advised Shafir, Aryeh and Schwab that HPD would not permit Poch to selectively choose which of the named respondents to represent in the HP Proceedings. In other words, HPD insisted that Poch appear and sign consent orders on behalf of all the named respondents. In the past, no one told Poch that he could not represent Arfa or Shpigel.

On June 24, 2008, Poch appeared with Aryeh in Bronx County Housing Court on two HP Proceedings: (1) HPD v. OCG I, Sido Sinai, Arie Spiegel and Alexander Shpigel, Index No. HP 32735/08/08 ("HP Proceeding 1"); and (2) HPD v. OCG V, Sido Sinai, Arie Spiegel and Rachel Arfa, Index No. HP 32736/08 ("HP Proceeding 2"). It should be noted that HPD, as petitioner,[*3]named Arfa and Shpigel as individual respondents in addition to the OCG entities. Poch asked Aryeh to confirm that he could enter consent orders on behalf of all the respondents, including Arfa and Shpigel, and that they understood and agreed to the terms. Aryeh made a phone call outside the courtroom, then returned and told Poch that he had the authority to enter into the consent orders. With Aryeh's assurance, Poch entered into a consent order settling HP Proceeding 1 wherein respondents agreed to correct more than 200 violations within a specified period and pay HPD a civil penalty of $6,000 ("Consent Order 1"). (Exhibit "HH" attached to the Poch Aff.) Poch also entered into a consent order in HP Proceeding 2 along the same lines with respondents consenting to correct many more violations and pay a lesser sum of $3,000 by October 24, 2008 ("Consent Order 2"). (Id.)

On the same day that Poch entered into the consent orders, defendant Lance Luckow, Esq. ("Luckow"), sent an e-mail to Mendez, Shafir, Aryeh and Schwab explaining to them that HPD had named Arfa and Shpigel as individual respondents in HP Proceeding 1 and HP Proceeding 2. Moreover, Arfa and Shpigel had actually been named in multiple proceedings and had "exposure to civil penalties well exceed[ing] a million dollars due to the failure to correct violations." (Exhibit "R" attached to the Poch Aff.) On the very next day, Poch e-mailed Aryeh explaining that Arfa and Shpigel had personal liability under the consent orders (which had been mailed to Aryeh) premised under the Multiple Dwelling Law § 4(44), and in ten other HP Proceedings. (Exhibit "S" attached to the Poch Aff.) Significantly, Poch further advised that "if we fought having those names [Arfa and Shpigel] on the orders, we would not only have probably lost, but HPD would have pushed for full liability which, we estimated, could have been over a million dollars. We settled for $93,000.00." (Id.) Notwithstanding Poch's warning, the OCG entities defaulted under several agreements and became liable for $230,000. (Exhibit "X" attached to the Poch Aff.)

In HP Proceeding 1 and HP Proceeding 2, HPD brought Orders to Show Cause to punish the respondents for civil and criminal contempt for failing to correct more than 200 outstanding violations ("Contempt Proceedings"). (Exhibit "FF" attached to the Poch Aff.) Arfa and Shpigel separately cross-moved to dismiss the Contempt Proceedings and to vacate the Consent Orders on the grounds that they were not properly served with the papers in the Contempt Proceedings and Poch did not have the authority to personally represent them. (Exhibits "GG" and "HH" attached to the Poch Aff.). By Decision and Order, dated January 25, 2010, the Hon. Jerald R. Klein, J.H.C. denied the branch of the Arfa and Shpigel cross-motions to dismiss due to improper service and set the remaining issue down for a hearing to determine whether Poch had the authority to enter into the Consent Orders on behalf of Arfa and Shpigel. (Exhibit "JJ" attached to the Poch Aff.) After a lengthy hearing, Judge Klein found that Arfa and Shpigel had "approved" Poch's representation and denied their cross-motion to vacate the Consent Orders. (Decision and Order dated June 4, 2010, attached as Exhibit "N" to the Hitchcock Aff.) Arfa and Shpigel appealed Judge Klein's decision and order to the Appellate Term, First Department, which affirmed Judge Klein's order holding that Poch had actual and/or apparent authority to represent Arfa and Shpigel in the HP Proceedings. The Appellate Term further held that Arfa and Shpigel ratified the Consent Orders by waiting more than one year to contest the orders and at the same time reaped the benefits of the bargain. (Exhibit "O" attached to the Hitchcock Aff.). 

Summary Judgment

The movant under CPLR § 3212 has the initial burden of proving entitlement to summary judgment. (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985].) Once such proof has been[*4]offered, in order to defend the summary judgment motion, the opposing party must "show facts sufficient to require a trial of any issue of fact." (CPLR § 3212[b]; Zuckerman v City of New York, 49 NY2d 557 [1980]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Freedman v Chemical Construction Corp., 43 NY2d 260 [1977]; Spearmon v Times Square Stores Corp., 96 AD2d 552 [2d Dept 1983].) "It is incumbent upon a [litigant] who opposes a motion for summary judgment to assemble, lay bare and reveal [his, her, or its] proof, in order to show that the matters set up in [the] answer are real and are capable of being established upon a trial." (Spearmon, 96 AD2d at 553 [quoting Di Sabato v Soffes, 9 AD2d 297, 301 (1st Dept 1959)].) If the opposing party fails to submit evidentiary facts to controvert the facts set forth in the movant's papers, the movant's facts may be deemed admitted and summary judgment granted since no triable issue of fact exists. (Kuehne & Nagel, Inc. v F.W. Baiden, 36 NY2d 539 [1975].) 

Legal Malpractice

In order to maintain a legal malpractice action against an attorney, the client must show three elements: (1) negligence, (2) proximate cause and (3) damages. (Prudential Ins. Co v Dewey, Ballantine, Bushby, Palmer & Wood, 170 AD2d 108 [1st Dept 1991] affd 80 NY2d 377 [1992].) In the context of legal malpractice, negligence is the attorney's failure to exercise "the degree of skill commonly exercised by an ordinary member of the legal community." (McKenna v Forsyth & Forsyth, 280 AD2d 79 [4th Dept 2001].) Proximate cause takes into account the traditional notions of forseeability which requires the client to demonstrate that "but for" the attorney's negligence the client would have obtained a favorable result or not sustained damages. (Id., 280 AD2d at 82). The damages have to be ascertainable and not merely speculative. (Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP, 301 AD2d 63 [1st Dept 2000].)

In this case, plaintiffs mainly rely on the uncontroverted fact that Poch never communicated directly with Arfa and Shpigel before executing the Consent Orders in the HP Proceedings. In support thereof, plaintiffs offer the expert opinion of Bruce Green, Esq. ("Green"), who opines that Poch's failure to communicate directly with Arfa and Shpigel violated the former Disciplinary Rule 6-101, which consequently resulted in a breach of his duty or negligence. Plaintiffs conclude that Poch's failure to communicate itself constitutes legal malpractice. While Poch's failure to communicate directly with Arfa and Shpigel may have been unwise in hindsight, or said conduct may have even been violative of a disciplinary rule, that alone is insufficient to give rise to an actionable cause of action. (Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193 [1st Dept 2003].)

Indirect communication may have been acceptable under these circumstances as defendants allege that there was a prior custom and practice wherein Arfa and Shpigel specifically delegated all communications with Poch to their designated agents, Shafir and Aryeh. It is noteworthy that Arfa and Shpigel's designated agents forwarded the petitions, which included them as individual respondents, to Poch to seemingly defend the respondents in the HP Proceedings. It is common and customary in landlord-tenant practice, for the same attorney (i.e., Poch), to represent both the corporate respondents (e.g., OCG I and OCG V), and related individual respondents such as corporate officers or agents acting in their official duties (i.e., Arfa and Shpigel), in HP Proceedings. (Affidavit of Greg Calabro, Esq., dated December 23, 2011 ["Calabro Aff."] at ¶ 6). (See, also, Cooke v Laidlaw Adams & Peck, Inc., 126 AD2d 453 [1st Dept 1987].) At the very least, Arfa and[*5]Shpigel "ratified the authority of Poch to enter into the consent order[s] by receiving the benefit of its terms and failing to raise any objection for more than one year from the date of the order[s]." (Orders of the Appellate Term, First Department decided April 21, 2011, 2011 NY Slip Op 50707[U] and 2011 NY Slip Op 50708[U], attached as Exhibit "O" to the Hitchcock Aff.) As such, Poch may have been permitted to communicate through intermediaries rather than in a direct manner.

Plaintiffs also have failed to demonstrate the second element of proximate cause. They have failed to demonstrate by expert or any other testimony that "but for" the defendants' alleged negligence Arfa and Shpigel would have obtained a favorable result or not sustained damages. On this limited record, it appears that entry of judgments against Arfa and Shpigel occurred as a result of OCG I and OCG V's failure to correct hundreds of violations and pay negotiated civil penalties as promised in the Consent Orders. HPD obtained personal liability against Arfa and Shpigel for failure to correct housing violations because the term "owner" is broadly construed as any person who is directly or indirectly control of the subject building as defined in Multiple Dwelling Law § 4(44) and the Housing Maintenance Code Section 27-2004(45). Therefore, personal liability may attach to a corporate officer who is construed to be an agent irrespective if the officer is or is not involved with the operation of the subject building. This is a strong motivating factor to quickly correct violations or the officers may be exposed to personal liability notwithstanding the usual corporate protections. In other words, responsible officers can not turn a blind eye or hide behind a corporate shield, but they must timely correct violations that are deemed a danger to life, health or safety. (Dept. of Housing Preservation and Development of the City of New York v Livingston, 169 Misc 2d 660 [App Term 2d Dept 1996]; Dept. of Housing Preservation and Development of the City of New York v Chana Realty Corp., NYLJ, June 7, 1993 [App Term 1st Dept].) Moreover, plaintiffs do not address a glaring inconsistency in their argument in that, had Poch not appeared for Arfa and Shpigel in the HP Proceedings, a default judgment would nonetheless have been entered against them due to their failure to appear. (Calabro Aff., at ¶ 11.)

Assuming arguendo that plaintiffs have met their prima facie case, plaintiff's motion for summary judgment is premature as defendants have not had an opportunity to conduct needed discovery which may lead to relevant evidence to oppose the motion. (CPLR § 3212[f].) Defendants are clearly entitled to depose Arfa and Shpigel and their agents, Shafir and Aryeh, as to their knowledge of direct and indirect communications between them concerning Poch's representation and authority to enter into the Consent Orders.

CONCLUSION

Accordingly, it is hereby:

ORDERED that plaintiff's motion for partial summary judgment on the issue of liability is denied.

The foregoing constitutes the decision and order of this Court.

E N T E R : 

Dated:July 9, 2013

New York, New YorkHon. Shlomo S. Hagler, J.S.C.

Footnotes

Footnote 1:In the Assignment, while Arfa and Shpigel specifically transfer to Schlam Stone their alleged legal malpractice claim against Howard Poch, Esq., individually, no reference is made to the remaining defendants.

How to Avoid an Estate Battle After You Die

It might seem that a woman who died at 104 after spending 20 years in a hospital despite being healthy enough to live in one of her three stately homes, accumulated a vast collection of dolls and preferred to communicate in French even though her father had been a United States senator would have little to teach the rest of us.

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Associated Press

Huguette Clark in 1930. Her wills — signed a month apart when she was 98 years old — are the crux of a legal dispute.

But two years after the death of that woman, Huguette Clark, the last surviving daughter of William A. Clark, who made a fortune in copper mining, her $300 million estate is still being disputed. And the battle has plenty of lessons for people with far less money.

At issue in Mrs. Clark’s case are two wills signed six years before her death in 2011. The first would have left most of her fortune to 21 distant relatives she did not know, may never have met and did not list by name. The second, signed a month later, increased the bequest for her caregiver, gave money to a goddaughter and established a foundation at her mansion in Santa Barbara, Calif., for her art and doll collection. The distant relatives got nothing.

The dueling wills have become part of a highly publicized court case involving Washington’s Corcoran Gallery of Art and one of Claude Monet’s Water Lilies paintings, valued at the time of Mrs. Clark’s death at $25 million. The case has also ensnared New York’s Beth Israel Medical Center,accused of pressing Mrs. Clark to make a big donation.

Documents full of intrigue have been filed in court — including a new cache just this week challenging theCorcoran Gallery’s claims — in preparation for a trial in September. The relatives could receive millions of dollars each if one or both wills is overturned or a settlement is reached. The caregiver and charities Mrs. Clark gave her money to could get nothing. Then there are the millions of dollars in legal fees to law firms and the tens of millions of dollars in estate taxes to the federal government, which will rise substantially if more money goes to the heirs than to charitable organizations.

“What we’re trying to do is make sure this case is being litigated with the right parties and not people who are trying to align themselves for ulterior motives,” said a lawyer, John D. Dadakis, in explaining the latest filings against the Corcoran. Mr. Dadakis is a partner at the law firm Holland & Knight, which is representing Mrs. Clark’s estate

It’s a big mess. But the dispute over Mrs. Clark’s two wills has implications for people with far less money. When is a person too old to decide her affairs? How can you insure that your money goes to the people and institutions you want to get it? Is there a way to prevent expensive lawsuits?

“People are living longer and they’re having periods of diminished capacity that are more and more common,” said Alan F. Rothschild Jr., a lawyer in Columbus, Ga., and a former chairman of the American Bar Association’s real property, trust and estate law section. “The litigation in this area is increasing because people are willing to sue more, even family members and the banks.”

Here is a look at some common issues raised in Mrs. Clark’s case.

DISPUTING HEIRS Challenges to wills by distant relatives are so common that lawyers have a nickname for those people: “laughing heirs” — as in they will be laughing all the way to the bank if their challenge succeeds.

“People tend to come out of the woodwork and believe that they’re closer than they are and should have some claim,” said a litigator who specializes in contested wills who spoke anonymously because other lawyers at her firm worked with some of the heirs in the Clark case. “The most often-challenged wills are those for people who don’t have direct, obvious heirs.”

A more common situation arises when a parent treats children differently. The trickier cases are those in which family members have had a falling out.

Paige K. Ben-Yaacov, a partner in the private client section of Baker Botts, said she counseled clients not to divide their estates unevenly. “They’re just making matters worse and opening the estate up to litigation.”

In Mrs. Clark’s case, she did not name her relatives in her wills because she did not know most of them. For people who intentionally leave out children, Ms. Ben-Yaacov advises creating a trail of estate documents over many years laying out their wishes in detail.

Mrs. Clark’s second will was in effect for six years before she died — normally long enough to establish that this was her intent, had she not been 98 when she signed it.

LEAVING A COLLECTIBLE The Corcoran Gallery is objecting to the will that gave it a $25 million Monet. If there were no will, the museum would receive a half-interest in a trust worth $3 million. That choice would seem to make little sense.

In an article in The Washington Postearlier this year, the Corcoran said it simply wanted to be sure that the second will, which gave it the painting, actually represented Mrs. Clark’s final wishes. Others have speculated that the Monet is not as valuable as once thought and that the museum would rather have cash than a painting it won’t display.

For people planning to leave something tangible like a painting to a museum, advisers suggest checking with the institution beforehand.

“You’d like to run that by them while the decedent is alive to make sure they’ll accept it,” said Sharon L. Klein, managing director of family office services and wealth strategies at Wilmington Trust. “You can’t force someone to take it.”

If the Corcoran doesn’t take the painting, the estate will have to pay about half of its value to the United States Treasury in estate taxes, since it will no longer be a charitable gift.

Mrs. Clark also set up, in the second will, a private foundation for the rest of her art and doll collection, to be housed in her mansion in Santa Barbara. Mr. Dadakis said the assets in the foundation accounted for about $125 million of the estate, including the mansion, worth $82 million. If that will is rejected, all will be subject to the estate tax.

PREVENTING DISPUTES Contesting a will is costly, time-consuming and emotional. One way to ensure that doesn’t happen is to make the downside of losing a risk too severe to take.

Long before death, when a will is filed and takes effect, people can put their assets into a revocable trust. They still have access to the money during their lifetime and can keep those assets out of the probate process. The trust could also act as a substitute for a will by naming other beneficiaries.

“The disappointed family member doesn’t have a legal right to challenge it,” Mr. Rothschild said. “They’d have to go to the court and say, ‘Even though it’s been in existence for many years, mother wasn’t competent to put it together.’ ”

When it comes to a will, one way to reduce the chances of a challenge is to put in a no-contest clause. In doing so a parent would leave a little to the otherwise disinherited children, but if they contest the will they get nothing.

“The trick is to strike the right balance between giving them enough so they’ll take it and not contest it and risk losing their inheritance,” Ms. Klein said. She said $5,000 might not do it, but $250,000 might.

For the big or contentious estates, like Mrs. Clark’s, the best option may be to appoint a professional trustee, usually from a trust company, who will be neutral. “If there is any kind of tension between family members it makes no sense to put a family member in there” as trustee, Ms. Ben-Yaacov said. “An independent trustee deals with this day in and day out. They’re good at defusing these situations.”

Source: www.NYTimes.com

ProPublica Investigates Prosecutorial Misconduct in New York

link

A new ProPublica special report that analyzed more than a decade's worth of state and federal court rulings found more than two dozen instances in which New York judges explicitly concluded there had been prosecutorial misconduct. And in nearly every instance, despite convictions being overturned, appellate court disciplinary committees never took action against the prosecutors for their costly errors. 

The investigation uncovered only one prosecutor, former Queens assistant district attorney Claude Stuart, who was disciplined for his actions and eventually lost his job after several abuses including withholding evidence from the defense, manipulating evidence and lying to a trial judge. In two of those cases the convictions were overturned.

"It's an insidious system," said Marvin Schechter, a defense attorney and chairman of the criminal justice section of the New York State Bar Association. "Prosecutors engage in misconduct because they know they can get away with it." (Schechter said he was expressing his own opinion, not that of his bar section.)

New York City's district attorneys disagree and call these errors limited in scope. But in response to those isolated instances, some have gone a step further by establishing internal units that examine claims of abuse. But as long as the abuse goes unchecked, academics and defense lawyers say prosecutors will continue doing what they’re doing.

"If you're in the Olympics and you're in a race and you win and then it's found that you took steroids, they take your medal away," said Larry Goldman, a former Manhattan prosecutor who is now a defense attorney. "No one says, ‘Oh well, it doesn't matter if you took steroids, you would've won anyway.'"

The obligation to disclose potentially important evidence to defense lawyers has long been a vital part of the criminal justice system, yet the new analysis showed that violations involving withholding evidence were the most common form of serious misconduct by city prosecutors. 
 
The New York State Bar Association has recently taken on the issue of how to define prosecutorial misconduct and what should be done about it as part of a larger initiative to address wrongful convictions. And while state legislators have introduced several bills incorporating the bar association's ideas, none have gained much traction. The state’s District Attorneys Association has outright opposed them, and other city district attorneys have said they could adversely affect public safety and are unnecessary in light of their own efforts to improve training and oversight.
 
Join ProPublica’s live chat Thursday at noon EST to discuss its latest investigation into prosecutorial misconduct. You can tweet questions with #PolicingProsecutors.
 
Read the full article.

For more background on this issue, download the Northern California Innocence Project report on prosecutorial misconduct.
 
You can also read the Innocence Project’s report: Court Findings of Prosecutorial Misconduct Claims in Post-Conviction Appeals and Civil Suits Among the First 255 DNA Exoneration Cases

August 13, 2012

Misconduct by Prosecutors, Once Again

By MICHAEL POWELL,

In March 2000, a tough guy named Petros Bedi was convicted of shooting a man dead in an Astoria nightclub. For this and other crimes, he is now serving 42 1/2 years in prison.

The crucial witness against Mr. Bedi agreed to testify only after the police arrested him on charges of dealing drugs.

During Mr. Bedi’s trial, a defense lawyer blasted away at the credibility of this witness and tried to prove he had incentive to lie. Didn’t the Queens district attorney foot the hotel bill to put up you and your girlfriend for eight months? Weren’t you paid handsomely for your testimony?

No, the witness insisted. I paid my own bill. Nobody paid me anything.

This was not true, and the prosecutors who sat in that courtroom and vouched for the honesty and truthfulness of this witness knew it.

Newly disclosed witness protection records show that the district attorney’s office in fact paid the witness, Seraphim Koumpouras, $16,640 for hotel bills. Prosecutors also gave him about $3,000 in cash; he received the last payment six days before he testified.

None of these specifics were disclosed to the defense. Instead, Mr. Bedi, with the help of a private investigator, battled for 10 years to obtain these records, which prosecutors should have turned over at the trial.

In a lawsuit filed Monday in State Supreme Court in Queens, Mr. Bedi’s new lawyer, Joel Rudin, asked the court to overturn the conviction. “This is,” he said, “a reprehensible case of prosecutorial misconduct.”

The district attorney’s office says only that it intends to contest the case vigorously.

Mr. Rudin has found a new witness, who points at a different gunman. Let’s put that question aside for now. Let’s also acknowledge that Mr. Bedi is no Jean Valjean, languishing because of an ugly twist of fate.

Mr. Bedi has been convicted in other cases of drug dealing and conspiracy to murder. But the genius of our system is that our most cherished rights often ride the backs of deeply flawed defendants. As Mr. Rudin says, “Just because the prosecution thinks he’s a criminal, that doesn’t mean they can rig the result.”

Mr. Rudin can lay claim to a real expertise on questions of prosecutorial misconduct. In 2003, a court found that a prosecutor in Queens had lied and tolerated lies by witnesses in order to convict Shih-Wei Su of a pool-hall murder.

Mr. Su served 13 years in prison. When he got out, he sued the city with Mr. Rudin’s help. In 2008, the city agreed, by way of apology, to write him a check for $3.5 million.

Mr. Rudin also handled the case of Jabbar Collins, who served 16 years because of prosecutorial missteps in Brooklyn. With Mr. Rudin’s help, he filed suit last year against the city and Michael Vecchione, chief of the rackets bureau for Brooklyn’s district attorney.

Prosecutorial misconduct has become a legal sore in plain sight. Marvin Schechter, a defense lawyer and chairman of the criminal justice section of the New York State Bar Association, wrote a column recently stating that misconduct stood revealed not as a trickle but as a polluted river.

He blamed district attorneys who valued conviction rates and tough-guy images over adherence to the rights of the accused. “Assistant district attorneys do not emerge from law school with a genetic disposition” to hide vital material, he wrote. “Instead this is something which is learned and taught.”

Prosecutors loosened howls of indignation. Prominent prosecutorial sorts have written letters in the past month and intimated they will no longer serve on committees if such calumnies stand.

Harrumph and all that.

AS Mr. Rudin noted in his filing, in 70 known cases of prosecutorial mistakes and misbehavior in Queens over about a decade, the district attorney, Richard A. Brown, has disciplined just one lawyer.

In Brooklyn, the district attorney, Charles J. Hynes, promoted and gave an award to Mr. Vecchione.

Three years ago, the State Bar Association created a task force that studied 53 cases of wrongful conviction. It found that prosecutorial and police misconduct accounted for over half the cases.

The stakes are primal. Mr. Bedi, 41, falls well short of sainthood, but he has served 17 years for all of his crimes. If his conviction on the murder charge stands, he faces 25 more years in prison.

As for Mr. Koumpouras, the prosecutors said his life was in danger, so they squirreled him away, at quite unusual expense. But when he stepped off the stand, such worries dissipated.

Prosecutors, the records show, handed him a final $100 and bid him goodbye.

E-mail: powellm@nytimes.com

Twitter: @powellnyt

Anthony Weiner's Sugar Daddies

Drooping Weiner got boo$t from shady bros

• By SALLY GOLDENBERG and CARL CAMPANILE
• Last Updated: 1:27 PM, May 6, 2013
• Posted: 12:46 AM, May 6, 2013
• LINK

Sugar daddies bailed out Anthony Weiner when he was down and out — giving him work after stuffing his many political campaigns with donations.

Hedge-fund brothers David and Eugene Grin helped Weiner with consulting work after he resigned from Congress following his sexting scandal, The Post has learned. The Grins also assisted his mayoral and congressional races, raising nearly $50,000 for Weiner, who is now considering a mayoral run.

Through two hedge funds, the Grins control Parabel, a company that claims to harvest an algae-like crop.

Weiner touted Parabel as one of his clients in a recent news article outlining his success as a business consultant. Weiner and his wife, Huma Abedin, reported earning $496,000 last year, mostly from his earnings.

What Weiner failed to mention was that on Jan. 13, Parabel transferred nearly all of its assets to a subsidiary in the Cayman Islands — on the same day a United Arab Emirates firm pumped $15 million into Parabel, according to a Securities and Exchange Commission document.

Weiner said he knew nothing about Parabel’s offshore move.

“I had nothing to do with the management of the company. Nor was I involved with the finance or operation of the outfit,” he said. “I’m not even sure I was consulting for them during this period.”

Eugene Grin declined comment on whether he helped Weiner get the consulting job with Parabel.

The Grins have also been associated with shady characters.

The brothers lent $6 million to Francis O’Donnell of Coach Industries. In 2007, O’Donnell pleaded guilty to being an associate of the Genovese crime family, according to published reports.

The Grins lent $24 million to Penthouse founder Bob Guccione to stave off eviction from his Manhattan town house. They took possession when he went into default, according to published reports.

The Racino Scandal Exposes The Corruption of Sheldon Silver, Lobbyist and Clinton Employee Hank Sheinkopf, and Others

Sheldon Silver on hot seat over racino bid as e-mails track money to political committee

By ISABEL VINCENT and MELISSA KLEIN

Last Updated:6:34 AM, July 14, 2013

Posted:1:03 AM, July 14, 2013

LINK

Sheldon Silver

As the state evaluated the billion-dollar proposals for the Aqueduct Racetrack racino in 2009, principals for the shadiest bidder gave thousands to a political committee controlled by Assembly Speaker Sheldon Silver — money that nobody today can account for.

And months later, just before that scandal-plagued bidder was picked, Silver solicited “campaign dough” from Hank Sheinkopf, a friend who was lobbying for the company, the Aqueduct Entertainment Group.

Hank Sheinkopf

New details of the tainted bidding process to put slot machines in Queens have emerged in a bombshell series of e-mails and transcripts obtained by The Post from the state inspector general through a Freedom of Information Law request.

Three years later, the machinations that resulted in AEG’s initial victory still mark one of the ugliest chapters in state politics — so ugly that Gov. Cuomo’s newly constituted Moreland Commission has decided to include AEG in its broad public-corruption probe, The Post has learned.

At stake were hundreds of millions of dollars for depleted state coffers and a huge payday for the company chosen to build and operate the gambling palace.

The bidding process was first investigated by the inspector general, who issued a 308-page report in 2010 and referred it to the US Attorney’s Office.

“At each turn, our state leaders abdicated their public duty, failed to impose ethical restraints and focused on political gain at a cost of millions to New Yorkers,” former IG Joseph Fisch said when he released the scathing report.

Two key AEG supporters, state Sens. John Sampson and Malcolm Smith, were arrested this spring by federal authorities on unrelated charges, and more legislators are reportedly in the cross hairs.

The AEG consortium included a mishmash of players with varying stakes, including not only developers but also a judge with ties to Bill Clinton, Queens power broker Rev. Floyd Flake and rap mogul Jay-Z.

Sampson pushed for developer Donald Cogsville to be included in the group at the eleventh hour, and Sampson, along with Flake, stood to make millions of dollars from a successful AEG bid, a source told The Post. Sampson, who was then Senate majority leader, decided who received the racino contract along with Silver and Gov. David Paterson.

The 10 months leading up to the January 2010 decision were marked by a frenzied lobbying effort by six competing companies. It was a selection process later described as “devoid of rules.”

The winning bidder had to pay the state $200 million up front in exchange for a license to run video lottery terminals, or VLTs, at the track.

The AEG team was tainted right out of the gate. Karl O’Farrell, the consortium founder, had already been disqualified in a prior bidding process by State Lottery officials because of concerns over his gaming business in Australia. Documents show O’Farrell tried to hide his involvement in AEG. And one of Flake’s partners was shown to have a criminal record.

The jockeying for political advantage is obvious in e-mail discussions among the AEG principals, who were desperate to get Silver on board in the summer of 2009.

“Rumor has it Shelly and the gov don’t like us for Aqueduct. I’m trying to get to the bottom of it,” according to a July 8, 2009, e-mail from AEG lobbyist Fred Polsinelli to Sheinkopf, a longtime political operative and Silver friend.

A few weeks later, the principals had an opportunity to curry favor with Silver at his “Speaker’s Cup” golf outing, a fund-raiser for the Democratic Assembly Campaign Committee. Silver was the group’s honorary chairman. But there were to be no traces of AEG on the money it donated to the event. “They don’t want the check to come from AEG,” O’Farrell wrote in an e-mail sent on July 17, 2009.

E-mails obtained by The Post show that a foursome of AEG leaders planned to attend the outing at a cost of $8,000. At least one principal did go to the Westchester tourney, later telling state investigators he “believed” his share was $2,000.

But no donation from AEG, its leaders or any of its companies shows up on the DACC’s campaign filings, raising questions about where the money went.

A Silver spokesman said neither the DACC nor Silver’s campaign committee received a donation from AEG or its representatives and suggested they attended the outing at someone else’s invitation.

Although Silver publicly distanced himself from the selection process, maintaining he would go along with Paterson’s choice, AEG did not want to leave anything to chance. Their secret weapon was Sheinkopf.

“I’ve seen Hank Sheinkopf in action. If you want some quality time with Silver, Hank’s your man,” consultant Eugene Christiansen told AEG principal Larry Woolf in an Aug. 19, 2009, e-mail.

A few days later, Woolf e-mailed developer Larry Roman: “if we were to offer Hank a big job or $ he could move Silver to our side.”

A month before AEG was chosen the winner, Silver asked Sheinkopf for “campaign dough,” according to a Dec. 14, 2009, e-mail from Sheinkopf to Roman.

Silver, in his testimony to the IG, denied knowing that Sheinkopf was working for AEG.

Sheinkopf refused to talk to the IG in 2010, invoking the Fifth Amendment. “I have no obligation to be intimidated by him under any circumstances. I’m not a state employee,” Sheinkopf told The Post last week. “It’s none of his f--king business, how’s that?’

AEG was chosen as the racino operator on Jan. 29, 2010. Silver imposed conditions on the consortium and asked for a $300 million upfront payment. But criticism of the bidding process mounted, and Paterson pulled the plug on the deal in March 2010.

Genting, another bidder, opened the racino in October 2011. It has already generated more than $1 billion in revenue.

melissa.klein@nypost.com

Andrew Cuomo, Albany, And Lobbyists - Village Voice

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

Betsy Combier

Andrew Cuomo Goes to Albany, Where Lobbyists Are Waiting

By Wayne Barrett Wednesday, Nov 10 2010
LINK

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Hank Sheinkopf

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Assemblywoman Glick overheard warning GOP colleague not to criticize Speaker Silver: 'You should quiet down before someone starts playing games with you'

• By BETH DEFALCO
• Last Updated: 10:43 AM, June 25, 2013
• Posted: 1:17 AM, June 25, 2013
• LINK

EXCLUSIVE

You’d better not criticize Sheldon Silver if you know what’s good for you.

A Silver ally warned a GOP critic of the powerful Democratic Assembly speaker that she’d better stop her attacks — or else, The Post has learned.

Assemblywoman Deborah Glick (D-Manhattan) was overheard telling Republican colleague Nicole Malliotakis that there would be consequences if the GOPer kept calling for Silver to step down over the Vito Lopez sexual-harassment scandal.

“You’ve been in the paper a lot talking about the speaker. You should quiet down before someone starts playing games with you,” Glick told Malliotakis on the floor of the Assembly, according to a person who overheard the conversation.

Malliotakis, who walked away without engaging Glick, declined to comment on the incident.

A call to Glick’s office seeking comment wasn’t returned.

'YOU SHOULD QUIET DOWN BEFORE SOMEONE STARTS PLAYING GAMES WITH YOU' — Deborah Glick (bottom left) to Nicole Malliotakis (top left) about Malliotakis' comments on Sheldon Silver (right).

Malliotakis, who won her Staten Island seat by beating Silver’s close pal, Janele Hyer-Spence, has been pounding the speaker for allowing Lopez to skate when sexual-harassment allegations against him first surfaced last year.

Silver has come under intense fire for approving a secret $103,080 payment to settle claims filed against the pervy Lopez by two female staffers.

The speaker has admitted he made a mistake by failing to refer the initial cases to the Assembly ethics panel.

As many as six other Lopez staffers reported his inappropriate behavior after the settlement, and two have since sued Silver for neglecting to report the conduct immediately.

Glick has steadfastly stood by the speaker — literally — since the scandal broke, appearing with him at news conferences and saying he made a mistake and should be given a second chance.

Silver and Glick have served together for more than 20 years, and her lower Manhattan district borders Silver’s. She was originally elected in 1991 as the first openly gay member of the Assembly, representing parts of Greenwich Village. Silver was elected speaker in 1994.

Malliotakis didn’t let the Glick comments dissuade her and went on to criticize Silver again over the weekend.

Meanwhile, Gov. Cuomo and Senate leaders are calling on Silver to return to Albany to pass nine of the 10 planks of Cuomo’s proposed Women’s Equality Agenda after they tanked in the final hours of the legislative session Saturday over the inclusion of an abortion measure.

Silver said the women in his caucus wouldn’t accept anything less than the 10 points and he was deferring to them. “We will continue to work in consultation with the governor to get all 10 points passed,” he said.

But GOP Senate co-leader Dean Skelos said, “New York stands at the doorstep of achieving historic new laws that will guarantee equal pay for equal work, protect the victims of domestic violence, end human trafficking and stamp out sexual harassment.

“These nine measures will improve the lives of countless women throughout our state, and it’s time for the speaker to swiftly join us in enacting each of them into law.”

bdefalco@nypost.com