Thursday, July 31, 2008

Westchester Guardian/Judge Brieant.

Thursday, July 31, 2008

The Court Report
By Richard Blassberg

Brieant: A No-Nonsense Purveyor Of The Law,
With A Great Big Heart Full Of Compassion

The passing last week of District Court Judge Charles L. Brieant, a giant of a man, who wore the power of his position with great humility and thoughtfulness, was truly a profound loss to the Westchester community. I had the pleasure of meeting Judge Brieant, for the first time in chambers, in August of 2006, shortly following the 35th anniversary of his appointment by President Richard M. Nixon. He had graciously agreed to grant The Guardian an interview despite his busy schedule of court cases.

I recall how very proud he was of the gallery of nearly three dozen photographs of young law school graduates who had interned with him, that adorned the walls, many of them having achieved prominence in public and private law careers. He was quick to point out that his work was “up to date”, due mainly to his “loyal conscientious staff.” Asked how he would characterize “the single most notable difference” in
the types of actions coming before him two years ago, as opposed to when he was first appointed, he had quickly responded, “There’s a tremendous difference; it has become the Court Of Working People.” He explained, “Where we were once the Court Of High Finance
and the High Seas, we’ve become the Court Of The People.” And, that seemed to suit Judge Brieant just fine.

He was gentle, but firm; a no-nonsense purveyor of the law, with a great big heart full of compassion. However, he was no one to fool with. He was willing to give a contentious litigant the benefit of the doubt, perhaps “enough rope”, as in the $600 million suit by former Mount Vernon Mayor Ernie Davis and Company.

The Judge was never more interested in anything than he was in bringing about just and equitable solutions; help to those in need of help. And, to that end, he would congratulate and encourage lawful and ethical conduct, even from unlawful and unethical prosecutors engaged in the worst of prosecutorial misconduct, as from ADA Valerie Livingston, if only at the 11th hour in the Anthony DiSimone case.

Seconds before Brieant would gavel open what promised to be a long, protracted, and very revealing evidentiary hearing, in which literally hundreds of pages, and scores of items, all exculpatory to Anthony DiSimone, concealed in what Second Circuit Judge Calabrese had called, “The worst Brady violation” he had seen in 12 years on the bench, Livingston, trembling, declared that the DA’s Office “would not oppose Mr. DiSimone’s writ of habeus corpus” after all. The Judge, so relieved that, back to the wall or not, the State Prosecutor, who had lied to his face and to the faces of his colleagues in the Court above for some time, was now doing the right thing, that he warmly congratulated, calmed, and encouraged her.

In the Paul Cote case, Brieant demonstrated his uncommon courage and his willingness to stand up against malicious prosecution and injustice. Apparently having nothing better to do than to reprosecute, this time in Federal Court, a case against a former County Correction
Officer that a jury in State Court had had trouble buying seven years earlier, the United States Attorney’s Office, beyond the statute of limitations, would attempt, nevertheless, to try Paul Cote in the death of an inmate from the County Jail, who never recovered from the head trauma actually inflicted by a fellow Correction Of-ficer, John Mark Reimer, now a sergeant.

In pre-trial hearings, the Judge, in a not-too-private sidebar, had told Prosecutors Cynthia Dunne and Andrew Schilling, “If your case fails, I will not be sad.” Proceeding forward, despite every good reason not to, the United States Attorney’s Office achieved a conviction, even though all of the credible evidence pointed to 6’3”, 300-lb body slammer Reimer, who had literally bounced the victim/inmate’s head on
the concrete floor of Cellblock G-1. It came as no surprise to us when Brieant overturned that conviction as inconsistent with the evidence, particularly the scientific evidence, presented at trial. Apparently everyone in the courtroom, for a week of testimony, except the jurors, understood that the prosecution was bogus.

There are several fine jurists upholding, daily, the United States Constitution in the courthouse at 300 Quarropas Street, White Plains. However, I cannot honestly state that I would ever have expected what Charles L. Brieant did, in the case of Paul Cote, from anyone else.

Before parting company with thegood Judge that August morning nearly two years ago, as 9am and his busy calendar were fast approaching, I asked, “Years from now, when judicial historians reflect upon your many years of service to the citizens of the Southern District of New York, how would you prefer to be remembered?” Pausing for a moment, he responded, “Remembered that I cared and wanted to help people.” Those who knew and admired Judge Brieant know that his wish will be granted.

Of Multimillion Dollar Mortgage
And Insurance Fraud Scheme Pleads Guilty

MICHAEL J. GARCIA, the United States Attorney for the Southern District of New York, announced that DOMINICK DEVITO
pleaded guilty in Manhattan federal court before United States District Judge BARBARA S. JONES to participating in a scheme to commit
mortgage fraud and insurance fraud and to obstruct justice.

According to the Indictment, other documents filed in the case, and statements made during the guilty plea proceeding: From January 2002 through November 2004, DEVITO was the leader of a fraudulent real estate investment scheme, which had as its primary objective the purchase of multimilliondollar residential properties in various communities in Westchester County - - including Purchase, New York -- with
loans obtained through the submission of false and misleading information to banks and other lenders. Many of the loans were for amounts equal to or more than one hundred percent of the property’s actual sale price, so that DEVITO and his co-conspirators did not have to risk any of their own money in the transaction. DEVITO identified properties for sale, orchestrated the purchase of the properties, and performed construction work at the properties.

In furtherance of the fraud, DEVITO submitted to various federally-insured banks loan applications, contracts of sale, deeds, real estate transfer documents, title reports, and other documents which contained materially false or misleading information about the income,
assets, existing debt and creditworthiness of the borrower, the chain of title to the property, and the sale price of the home.

DEVITO and his coconspirators also indicated the borrower’s intent to reside in the property as a primary residence, when the properties were typically purchased for investment purposes. DEVITO ultimately “cashed out” on certain properties by taking additional private loans against the already fraudulently-inflated sale price of the properties. The proceeds of these loans, which were never repaid in full, were
deposited in a bank account used for DEVITO’s benefit.

As a result of DEVITO’s scheme to defraud, DEVITO obtained millions of dollars in loan proceeds, and was able to control certain properties that he otherwise would not have been able to purchase and finance. The banks, on the other hand, lost millions of dollars
when DEVITO and his co-conspirators defaulted on mortgage payments and caused several of the properties to go into foreclosure.

In addition, from January 2003 through February 2005, DEVITO engaged in a scheme to defraud insurance companies by submitting false
and misleading insurance claims and supporting documents for water damage caused by broken pipes at several of the homes he and his co-conspirators had purchased as part of the mortgage fraud scheme.

Also, DEVITO obstructed justice in connection with his sentencing in 2003 in Manhattan federal court after he was convicted of racketeering
and mortgage fraud in an earlier case. Specifically, DEVITO submitted false and misleading information regarding the value of his assets and his personal net worth following his sale of a property located in Purchase, New York.

DEVITO, 44, pleaded guilty to one count of conspiracy to commit bank fraud, one count of conspiracy to commit mail fraud, and one
count of obstruction of justice. He faces a total maximum prison term of sixty years and mandatory restitution to the victims of his crimes. DEVITO also agreed to forfeit a total of $1.4 million. He is scheduled to be sentenced by United States District Court Judge BARBARA S. JONES on October 24, 2008.

Of the three other defendants charged in the case, one has pleaded guilty and the other two await trial, which is scheduled for September 2, 2008. As to the defendants awaiting trial, the charges are merely accusations, and the defendants are presumed innocent unless and until proven guilty. Mr. GARCIA praised the work of the Federal Bureau of Investigation in the investigation of this case. Assistant United States Attorneys KATHERINE R.GOLDSTEIN and JONATHAN B. NEW are in charge of the prosecution.

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