Thursday, September 17, 2009
If This is What County Government
Has Done For The People Of Westchester, It’s
Time To Do Away With County Government
Last Tuesday morning, September 8th, we attended the third in a series of hearings at the County Legislators’ Committee Conference Room at the County Office Building dealing with the federal government’s ultimatum to Westchester to promulgate and finally comply with the rules and actions needed to bring about affordable, fair housing.
Regardless of the show that Susan Tolchin, Deputy County Executive, continues to stage, ably assisted by attorney Stuart Gerson of Epstein, Becker & Greene, there is no denying that Andy Spano, and his partner in crime, Larry Schwartz, have gotten Westchester taxpayers in over their heads by their reckless, incompetent misappropriation of nearly $52 million, and their deceptive accounting of its use.
Last week we suggested that Spano had let down both the legislators and taxpayers. We still believe that. However, following a discussion with Chairman Bill Ryan just prior to the start of Tuesday’s proceedings, we now believe that the legislature is every bit as culpable as Spano & Company for the predicament homeowners and taxpayers are now confronted with. When asked how it was that he and his fellow
Board Members had not retained their own attorney, Chairman Ryan indicated that he didn’t believe that the Board of Legislators needed separate legal counsel.
When we raised the issue of Separation Of Powers between the Executive and Legislative branches in County Government, Ryan saw no conflict in relying upon the legal advice of County Attorney, Charlene Indelicato, who was employed at the pleasure of the County Executive, and Stuart Gerson, outside counsel also retained by Spano, to whom Gerson expressed his “loyalty” at the first hearing, a notion Ryan quickly took issue with. We do not accept the idea that Bill Ryan could possibly be that naive. If he is trying to suggest that Andy and Larry haven’t misappropriated federal grants and misrepresented to the federal government, the Department Of Housing And Urban Development, what they did with $52 million, he is culpable before, and after, the fact, and should be held just as accountable as Spano,
Schwartz, and Tolchin, together with every other legislator who sits around that conference table never once asking where the $52
million went.
In plain English, there is no way that use of the same attorneys who, for more than two years, have worked for Spano & Company in the effort to mitigate and minimize their wrongdoing in negotiations with the Justice Department, HUD, and the Federal Court should now be advising and instructing a supposedly separate and independent body of taxpayer representatives, particularly given that those same taxpayers must now pick up the $65 million tab for all that wrongdoing.
It’s safe to say that the 17-member Legislature, the overwhelming majority of whom were campaign-financed and assisted by Spano from contributions controlled by him and Larry Schwartz, are not all that concerned about the plight of their constituents under the terms of the imposed settlement. Why else would only 12 of them show up on time and others, such as Republican Jim Maisano, miss both the first and third hearings?
Jim Johnson, a former United States Attorney, a federal prosecutor with extensive experience in the area of housing discrimination, was introduced as the appointed monitor, although Chairman Ryan was careful to describe him as “the individual proposed as monitor,” as if the County had
any choice in the matter if the Legislature accepts the settlement.
Then Ryan introduced Rose Noonan, an individual with several years of experience in housing issues in Westchester, dealing with not-for-profits, County government, as well as the City of Yonkers, and instructing at Pace University Law School; in short, someone thoroughly enmeshed
in, and dependant upon, the Westchester network of control for her bread and butter.
At that point, as if to emphasize his allegiance to, and blind obedience to, the Spano Regime, Ryan said, “We have our very own outside counsel who is acting as our consultant in this matter, Stuart Gerson.”
Nothing could be further from the truth given the manner in which this entire housing dilemma was brought into being, under the control and mismanagement of Spano & Company.
To now tell the public, the overtaxed homeowners and business-people who will have to foot the bill, that Stuart Gerson, an attorney who has
been working behind the scenes for more than two years to cover Andy’s backside, that he is the County Legislators’ legal consultant, is to deny
any independent voice, any representation of the Peoples’ interest, on the part of the so-called County Legislature.
In fact, it is a blatant admission that the Board of Legislators is simply a 17-member/50 support staff rubber stamp; and a damned expensive one at that. Readers must not lose sight of the fact that 13 out of 17 of these so-called legislators, individuals pulling down $1,000 a week plus stipends
for a part-time job, are Democrats, all of whom feel beholden to Spano and Schwartz, and, could care less about their constituents’ interests or wishes.
They proved that, unmistakeably, with the purchase of the Halpern white elephant at 450 Saw Mill River Road in Ardsley last year. They established that when Andy says “jump”, they only ask, “how high?”
The moldy old building was a commitment of $13.5 million, to possibly as much as $20 million, before it is repaired and renovated; we will never know for sure. This commitment, if approved, will be for $65 million. Not one of these legislators asks where the money went, or why Spano violated the False Claims Act by lying, yes, lying to HUD and the federal government. They don’t ask because they are culpable themselves.
If ever there was a moment when the citizens of Westchester could clearly see the dysfunction within County government; the failure to have checks and balances, the corruption with money of the Legislative Branch by the Executive, that moment is now!
The Board of Legislators is ready to sell out the People of Westchester. Not one of them apparently comes to the table with clean hands. So committed are they, Republicans included, to covering up all of the wrongdoing and double-dealing that has placed our homeowners and taxpayers
in the fix they are now in, that they are only too ready to sign off on an agreement that will cost their constituents $65 million and place control of the future growth of their communities in federal hands.
If this is what County government has done for the People of Westchester, it is time to do away with County government.
Thursday, September 17, 2009
Westchester Guardian/In Our Opinion/Our Readers Respond.
Thursday, September 17, 2009
In Our Opinion...
Hey, Mike!
We strongly support the First Amendment, particularly Freedom Of The Press. As a newspaper, we are very sensitive to any attempt,
no matter how subtle or disguised, to stifle free expression of one’s knowledge or beliefs. History has repeatedly shown us that totalitarian
regimes characteristically do not accept, or live in harmony with, a free press.
A free press, and an unfettered marketplace of ideas, is essential to any Democratic society or form of government. However, it is mandatory
that anyone holding themselves out as a journalist be willing to identify both himself and his source, especially when publishing an accusatory piece, one that may be damaging to another, or to their reputation. In this regard, although we support the First Amendment in all of its manifestations, be they broadcast, newsprint, hard-covered, or electronic, we have no respect for those who would ventilate their flatulent offerings while hiding behind the anonymity of their computer IP.
Such creatures foul up the marketplace of ideas with their excretions, frequently not merely assuming an Anon or some other fictional
identification, but often using many assumed identities, sometimes 10 or 12, posting one dropping after another, asking and answering their own irrelevancies. At times these ‘burnt offerings’ are almost amusing, but for their usual highly defamatory content. For such posters, it’s as though they can’t get their daily fix until they spew their venom, and then go hide.
To suggest that such multiple posters are cowardly creatures is to engage in classic British understatement. They have an axe to grind, and/or an agenda, or somebody else’s agenda to further, and frequently go from blog to blog, leaving behind their mostly fictional, malicious rants, much as graffiti sprayers do as they go from wall to fence, disfiguring the urban panorama.
Interestingly, even when they blow their own cover with their repetitive beef, their practice-specific terminology, and their manic repetition,
getting identified by name by the very next poster, they go right on as if the silver bullet had just bounced off their body armor. In reality, they are pathetically addicted to the blogosphere, getting a rush from posting rude, sometimes very crude, remarks about decent individuals whose shoes they couldn’t shine, whose eyes they couldn’t look into; they don’t stand tall enough.
“Cowardly creatures”? Sure, but somehow ‘little worm’ seems a much more fitting description. It’s truly hard to tell if they are one notch above, or one notch below, the creeps who write on the walls in public toilets. As a “political commentator”, Mike Edelman, what do you think?
Our Readers Respond...
And Now A Word From The Right
Dear Editor:
After reading an article by your Democratic operative, Fred Polvere (Our Elite Media) I must ask a question culled from his “objective” article. On what planet do you spend your time, Mr. Polvere? The article deals with an ad placed on MoveOn.Org during the Bush Administration which spliced together images of Bush and Hitler. It is Polvere’s contention that the Republican Party unfairly condemned the Democrats when he claims they were totally innocent in the publication of the ads.
For Polvere’s information MoveOn.Org is a left-wing group funded by George Soros, an avowed Socialist, and an unofficial arm of the Democratic Party. To state as he did in the article that the Republicans should have remained mum and not condemned the Soros group and the Democrats is naïve. Who runs the mainstream media in America today? Not the Republicans or the various conservative talk show hosts,
but as Polvere knows, or should know, the media is infested with Liberals who wouldn’t know the truth if they fell over it.
Instead he condemns the Fox News Channel which at least makes an effort to present both sides of an issue. Can the same be said for CBS, NBC, ABC or the New York Times? The fact that a majority of Americans fell for the left wing propaganda of the left wing media and elected a neo-Marxist President is clear proof of the “objectivity” of the press. If they had dared to tell the truth about Obama’s background, his associates, and his political philosophy, it is a good bet that he would not be sitting in the White House with his American hating wife. The press in America has disgraced itself by laying down and becoming a harlot for the Obama Administration.
Sal Dye, New Rochelle
Another Good Idea From Paul
Dear Editor:
At the meeting of the Greenburgh Town Board on September 9th two residents spoke of the value of CPR training. One mother (Janine Thompson) advised the Town Board that her small child’s life was saved because a child care provider who worked for her provided CPR after the child choked (and after the frightened mother failed to successfully stop the choking). Wendy Marder Lewin also spoke of the need for CPR training.
The presentation made me reflect on an unpleasant fact: most people do not know what to do if a family member has a choking incident. Even if someone had CPR training years ago –if they don’t get refreshers, they will forget what needs to be done. I would like to suggest that all school districts teach every middle school and high school student CPR. CPR training by a qualified instructor could save lives. Students should also learn how to relieve choking and how to use an AED –automated external defibrillator. If one life is saved because of this annual instruction it would be worth the cost. Providing CPR training to every middle school and high school student and reinforcing the training each year makes a tremendous amount of sense.
Paul Feiner, Greenburgh Town Supervisor
In Our Opinion...
Hey, Mike!
We strongly support the First Amendment, particularly Freedom Of The Press. As a newspaper, we are very sensitive to any attempt,
no matter how subtle or disguised, to stifle free expression of one’s knowledge or beliefs. History has repeatedly shown us that totalitarian
regimes characteristically do not accept, or live in harmony with, a free press.
A free press, and an unfettered marketplace of ideas, is essential to any Democratic society or form of government. However, it is mandatory
that anyone holding themselves out as a journalist be willing to identify both himself and his source, especially when publishing an accusatory piece, one that may be damaging to another, or to their reputation. In this regard, although we support the First Amendment in all of its manifestations, be they broadcast, newsprint, hard-covered, or electronic, we have no respect for those who would ventilate their flatulent offerings while hiding behind the anonymity of their computer IP.
Such creatures foul up the marketplace of ideas with their excretions, frequently not merely assuming an Anon or some other fictional
identification, but often using many assumed identities, sometimes 10 or 12, posting one dropping after another, asking and answering their own irrelevancies. At times these ‘burnt offerings’ are almost amusing, but for their usual highly defamatory content. For such posters, it’s as though they can’t get their daily fix until they spew their venom, and then go hide.
To suggest that such multiple posters are cowardly creatures is to engage in classic British understatement. They have an axe to grind, and/or an agenda, or somebody else’s agenda to further, and frequently go from blog to blog, leaving behind their mostly fictional, malicious rants, much as graffiti sprayers do as they go from wall to fence, disfiguring the urban panorama.
Interestingly, even when they blow their own cover with their repetitive beef, their practice-specific terminology, and their manic repetition,
getting identified by name by the very next poster, they go right on as if the silver bullet had just bounced off their body armor. In reality, they are pathetically addicted to the blogosphere, getting a rush from posting rude, sometimes very crude, remarks about decent individuals whose shoes they couldn’t shine, whose eyes they couldn’t look into; they don’t stand tall enough.
“Cowardly creatures”? Sure, but somehow ‘little worm’ seems a much more fitting description. It’s truly hard to tell if they are one notch above, or one notch below, the creeps who write on the walls in public toilets. As a “political commentator”, Mike Edelman, what do you think?
Our Readers Respond...
And Now A Word From The Right
Dear Editor:
After reading an article by your Democratic operative, Fred Polvere (Our Elite Media) I must ask a question culled from his “objective” article. On what planet do you spend your time, Mr. Polvere? The article deals with an ad placed on MoveOn.Org during the Bush Administration which spliced together images of Bush and Hitler. It is Polvere’s contention that the Republican Party unfairly condemned the Democrats when he claims they were totally innocent in the publication of the ads.
For Polvere’s information MoveOn.Org is a left-wing group funded by George Soros, an avowed Socialist, and an unofficial arm of the Democratic Party. To state as he did in the article that the Republicans should have remained mum and not condemned the Soros group and the Democrats is naïve. Who runs the mainstream media in America today? Not the Republicans or the various conservative talk show hosts,
but as Polvere knows, or should know, the media is infested with Liberals who wouldn’t know the truth if they fell over it.
Instead he condemns the Fox News Channel which at least makes an effort to present both sides of an issue. Can the same be said for CBS, NBC, ABC or the New York Times? The fact that a majority of Americans fell for the left wing propaganda of the left wing media and elected a neo-Marxist President is clear proof of the “objectivity” of the press. If they had dared to tell the truth about Obama’s background, his associates, and his political philosophy, it is a good bet that he would not be sitting in the White House with his American hating wife. The press in America has disgraced itself by laying down and becoming a harlot for the Obama Administration.
Sal Dye, New Rochelle
Another Good Idea From Paul
Dear Editor:
At the meeting of the Greenburgh Town Board on September 9th two residents spoke of the value of CPR training. One mother (Janine Thompson) advised the Town Board that her small child’s life was saved because a child care provider who worked for her provided CPR after the child choked (and after the frightened mother failed to successfully stop the choking). Wendy Marder Lewin also spoke of the need for CPR training.
The presentation made me reflect on an unpleasant fact: most people do not know what to do if a family member has a choking incident. Even if someone had CPR training years ago –if they don’t get refreshers, they will forget what needs to be done. I would like to suggest that all school districts teach every middle school and high school student CPR. CPR training by a qualified instructor could save lives. Students should also learn how to relieve choking and how to use an AED –automated external defibrillator. If one life is saved because of this annual instruction it would be worth the cost. Providing CPR training to every middle school and high school student and reinforcing the training each year makes a tremendous amount of sense.
Paul Feiner, Greenburgh Town Supervisor
Westchester Guardian/The Court Report.
Thursday, September 17, 2009
The Court Report
By Richard Blassberg
Former Manhattan Cosmetic Surgery Clinic Owner
Extradited From Canada Pleads Guilty To Conspiracy To Defraud
PREET BHARARA, the United States Attorney for the Southern District of New York, announced that ARTHUR KISSEL, a/k/a “Arthur Froom,” a former cosmetic surgery clinic owner, pleaded guilty in Manhattan Federal Court to a scheme to defraud health insurance companies of more than $900,000.
According to the Indictment to which KISSEL pleaded guilty; the evidence at the 2000 trial of KISSEL’s wife, SONIA LAFONTAINE, in the case; and statements made during KISSEL’s September 2008 bail hearing and the guilty plea proceeding before United States District Judge DENNY CHIN: KISSEL and LAFONTAINE owned and operated LaFontaine Rish Medical Associates, a cosmetic surgery clinic located at 315 West 57th Street in Manhattan. LAFONTAINE -- who had no medical license and was not acting under a physician’s supervision - performed procedures which were billed as having been performed by licensed physicians. KISSEL and LAFONTAINE’s clinic also billed cosmetic procedures, such as “tummy-tucks” and liposuction, in the guise of medically necessary procedures, such as hernia repairs and lesion removals. They also submitted claims to insurance companies for procedures that were never performed, and exaggerated insurance claims by increasing the number and complexity of procedures that were actually performed.
KISSEL and LAFONTAINE were originally indicted in March 1998. At that time, KISSEL was in Canada where he and his wife ran another cosmetic surgery clinic. LAFONTAINE was arrested in the United States in 1998 and was found guilty on all charges on July 12, 2000, following a six-week jury trial. She was ultimately sentenced to ten years in prison. The United States initiated extradition proceedings against KISSEL in 2000, which resulted in his August 2008 return from Canada on these charges.
KISSEL, 55, pleaded guilty to one count of conspiracy to commit mail fraud and health care fraud, and one count of mail fraud. He faces a maximum sentence of 5 years in prison on each count; a maximum fine of the greater of $250,000 or twice the gross gain or loss resulting from the crime on each count; and forfeiture of the proceeds of his crimes. KISSEL is scheduled to be sentenced by Judge CHIN on December 15, 2009 at 2:30 p.m.
Mr. BHARARA praised the outstanding investigative work of the United States Postal Inspection Service and the Federal Bureau of Investigation in this case.
This case is being handled by the Office’s Major Crimes Unit. Assistant United States Attorney ROBIN W. MOREY is in charge of the prosecution.
The Court Report
By Richard Blassberg
Former Manhattan Cosmetic Surgery Clinic Owner
Extradited From Canada Pleads Guilty To Conspiracy To Defraud
PREET BHARARA, the United States Attorney for the Southern District of New York, announced that ARTHUR KISSEL, a/k/a “Arthur Froom,” a former cosmetic surgery clinic owner, pleaded guilty in Manhattan Federal Court to a scheme to defraud health insurance companies of more than $900,000.
According to the Indictment to which KISSEL pleaded guilty; the evidence at the 2000 trial of KISSEL’s wife, SONIA LAFONTAINE, in the case; and statements made during KISSEL’s September 2008 bail hearing and the guilty plea proceeding before United States District Judge DENNY CHIN: KISSEL and LAFONTAINE owned and operated LaFontaine Rish Medical Associates, a cosmetic surgery clinic located at 315 West 57th Street in Manhattan. LAFONTAINE -- who had no medical license and was not acting under a physician’s supervision - performed procedures which were billed as having been performed by licensed physicians. KISSEL and LAFONTAINE’s clinic also billed cosmetic procedures, such as “tummy-tucks” and liposuction, in the guise of medically necessary procedures, such as hernia repairs and lesion removals. They also submitted claims to insurance companies for procedures that were never performed, and exaggerated insurance claims by increasing the number and complexity of procedures that were actually performed.
KISSEL and LAFONTAINE were originally indicted in March 1998. At that time, KISSEL was in Canada where he and his wife ran another cosmetic surgery clinic. LAFONTAINE was arrested in the United States in 1998 and was found guilty on all charges on July 12, 2000, following a six-week jury trial. She was ultimately sentenced to ten years in prison. The United States initiated extradition proceedings against KISSEL in 2000, which resulted in his August 2008 return from Canada on these charges.
KISSEL, 55, pleaded guilty to one count of conspiracy to commit mail fraud and health care fraud, and one count of mail fraud. He faces a maximum sentence of 5 years in prison on each count; a maximum fine of the greater of $250,000 or twice the gross gain or loss resulting from the crime on each count; and forfeiture of the proceeds of his crimes. KISSEL is scheduled to be sentenced by Judge CHIN on December 15, 2009 at 2:30 p.m.
Mr. BHARARA praised the outstanding investigative work of the United States Postal Inspection Service and the Federal Bureau of Investigation in this case.
This case is being handled by the Office’s Major Crimes Unit. Assistant United States Attorney ROBIN W. MOREY is in charge of the prosecution.
Westchester Guardian/Jeff Deskovic.
Thursday, September 17, 2009
Jeff Deskovic
Creation Of A National Institute
Of Forensic Sciences Is Critical
On September 3, 2009, a story appeared in the Daily News regarding Dwight Gomas, who had spent 17 months in Rikers Island in New York for robbery before it came to light that the fingerprints which formed the basis for his arrest did not, in fact, match him.
According to the News, “He was in fact 880 miles away, living in Atlanta, when armed thugs robbed Theresa’s Gold Lynch jewelry store in
Howard Beach in October 2003. A year later, Gomas was arrested for the robbery by United States marshals. Detective Eileen Barrett had
matched a partial index finger print from the crime scene to Gomas, whose prints were on file after an arrest for driving with a suspended license in Brooklyn. It was the only arrest on his record other than a juvenile bust.
A second NYPD detective, Charles Schenkel, confirmed Barrett’s identification, according to court papers. Gomas maintained his innocence
before the grand jury, but was indicted and couldn’t make the $30,000 bail. His Legal Aid lawyer advised him to accept a plea offer of five years in prison, but he refused. Gomas was headed to trial for a Queens jewelry store stickup when a veteran detective routinely checked his identification.
‘When I looked at it, I said, ‘You know what? is is a screw up; this is not his fingerprints,’ said Detective Daniel Perruzza, according to a
court transcript. ‘It looks similar, but ‘similar’ doesn’t cut it in prints. It has to be an exact match,’ Perruzza said. During his 523 days in jail, he lost his spot in a cooking school and his girlfriend and their child moved in with another man.”
As I have long maintained, the idea that people could be arrested and wrongfully convicted for crimes that they are innocent of is quite
scary. But the idea that one could be wrongfully arrested for a crime that happens in another state nearly 1000 miles away is even scarier. Yet it is a reality.
According to The Innocence Project’s website, “A report from the National Academy of Sciences released this year found that fingerprint
analysis was among the forensic disciplines that has not ‘been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.’ According to The Innocence Project, “Stephan Cowans spent more than five years in Massachusetts prisons after a false fingerprint match led to his conviction for a crime he didn’t commit.”
But this problem goes way beyond merely cases in which fingerprint evidence is a factor. According to the Just Science website, which is
a broad-based group committed to having scientific standards in place regarding forensic science so that only scientifically based, sound procedures are the foundation of any forensic evidence and testimony in criminal cases: “Many forensic disciplines have evolved primarily through their use in individual cases and have not been scientifically validated or standardized. Forensic analysts sometimes testify in cases without a proper scientific basis for their findings. Testimony about more dubious forensic disciplines, such as efforts to match a
defendant’s teeth to marks on a victim or attempts to compare a defendant’s voice to a voicemail recording, are cloaked in science but lack even the most basic scientific standards.
Even within forensic disciplines that are more firmly grounded in science, evidence is often made to sound more precise than it should. For example, analysts will testify that hairs from a crime scene ‘match’ or ‘are consistent with’ defendants’ hair – but because scientific research on validity and reliability of hair analysis is lacking, they have no way of knowing how rare these similarities are, so there is no way to know how meaningful this evidence is.
In approximately 50% of DNA exonerations, unvalidated or improper forensic science contributed to the wrongful conviction. But, while DNA exonerations are a window into the effect of unvalidated or improper forensic science contributing to wrongful convictions, DNA does not solve the problem. Experts estimate that only 5-10% of all criminal cases involve biological evidence that could be subjected to DNA testing. In the other 90-95% of crimes, DNA testing is not an option – so the criminal justice system relies on other kinds of evidence, including forensic disciplines that may not be scientifically sound or properly conducted.”
With that background, the need for a National Institute of Forensic Science created by Congress is obvious. Roy Brown spent 15 years in
prison in New York for a murder he was innocent of. Innocence Project Co-Founder Peter Neufeld testified at a Congressional Hearing that,
“‘The forensic dentist [at Roy Brown’s trial] used what was then the prevailing method of comparing bite marks found on a body with the dentures of a suspect,’ said Neufeld. ‘He examined them and decided that he had a match with Roy’s bite. He so testified in court, and Roy was convicted.’”
At the moment, Congress is holding hearings and considering creating just such an entity. Fueling the inquiry is a report that was recently released. According to the Just Science website, “In 2006, Congress appropriated funds to the National Academy of Sciences (NAS)
to thoroughly study the fundamental underpinnings of forensic science and its applications in our criminal justice system. A blue-ribbon NAS panel was formed – including scientists, academics, a retired federal judge, and other notable experts. Over an eighteen-month period, the group held several public hearings and gathered comprehensive research on forensic disciplines.
This Committee on Identifying the Needs of the Forensic Sciences Community released its final report, Strengthening Forensic Science in
the United States: A Path Forward, in February 2009. In releasing their report, the co-chairs of the committee emphasized that there was a consistent theme throughout their deliberations.”
The report says: “The forensic science system, encompassing both research and practice, has serious problems that can only be addressed
by a national commitment to overhaul the current structure that supports the forensic science community in this country. This can only be done with effective leadership at the highest levels of both federal and state governments, pursuant to national standards, and with a
significant infusion of federal funds.”
The report’s key findings include:
• “With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently,
and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” (NAS Report, page S-5)
• “…What is needed to support and oversee the forensic science community is a new, strong and independent entity that could take on the
tasks that would be assigned to it in a manner that is as objective and free of bias as possible – one with no ties to the past and with the authority and resources to implement a fresh agenda…” (NAS Report p S-13)
• “There are great disparities among existing forensic science operations in federal, state and local law enforcement jurisdictions and agencies…
It is clear, however, that any approach to overhauling the existing system needs to address and help minimize the community’s current
fragmentation and inconsistent practices.” (NAS Report, page S-4)
• “Although research has been done in some disciplines, there is a notable dearth of peer-reviewed, published studies establishing the scientific
bases and validity of many forensic methods.” (NAS Report, page S-6)
• “A body of research is [also] required to establish the limits and measures of performance and to address the impact of sources of variability
and potential bias.” (NAS Report, page S-6)
• “…The adversarial process relating to the admission and exclusion of scientific evidence is not suited to the task of finding ‘scientific truth’…Judicial review, by itself, will not cure the infirmities of the forensic science community.” (NAS Report, page S-20)” According to that report, here is what reform would look like: “Assessment of validity and reliability:
• The federal government should establish a science-based federal entity or agency, the National Institute for Forensic Sciences (NIFS), to review
both existing and new techniques, devices and assays to determine the extent to which they are scientifically valid and reliable for use in the criminal justice system.
• NIFS should establish standards for reliable application of forensic science disciplines in criminal cases (e.g. match criteria) to ensure the use of forensics within prescribed parameters.
• NIFS should have compliance authority to ensure the discontinuation of invalid or unreliable methods.
Research:
• NIFS should fund both basic and applied research to test the validity and reliability of extant forensic methods, devices and assays; and to
support the development of new technologies to solve crime.
Quality assurance, accreditation and certification:
• NIFS should set enforceable standards for public and private laboratories, as well as for individual professionals, that conduct forensic tests
and examinations intended for use in courts.
• Quality controls and quality assurance programs should be established to secure the integrity of the ultimate forensic product in laboratories
and in courts. This should include (but not be limited to) validation of devices for particular labs; written protocols and procedures; minimum
qualifications, staff training and proficiency testing for personnel; and parameters for data interpretation, report writing and testimony.
Training:
• NIFS should support comprehensive training and professional development in the forensic science field in order to build the capacity for research
and quality assurance, and to bring current and new forensic science personnel into compliance with established qualifications and standards.
Oversight
• The Director of NIFS, in consultation with science-based federal government agencies, should appoint a Forensic Science National Commission
composed of science professionals to set broad research priorities and to promulgate forensic science standards.
• The Director of NIFS, in consultation with science and criminal justice-based federal government agencies, should also appoint an Advisory
Committee to provide input to the Commission and NIFS with regard to its various responsibilities.”
There are many junk sciences that lead to wrongful convictions. There is bullet lead analysis, which falsely purports to be able to trace the bullet fired from a gun used in a crime all the way back to the box from which it originated.
According to The Innocence Project’s website: “Hair microscopy, bite mark comparisons, firearm testing or tool mark analysis – have never been subjected to rigorous scientific evaluation. Other methods – such as serology (commonly known as blood typing) – have been properly validated
but are sometimes improperly conducted or inaccurately conveyed in trial testimony. In some cases, forensic analysts have fabricated results
or engaged in other misconduct.”
With each new revelation of a junk science, it becomes apparent that perhaps thousands more have been wrongfully convicted. Considering that we are talking about people’s lives, it is high time that we have a National Institute for Forensic Science. After all, in other disciplines oversight agencies and standards are in place. Electrical devices are scrutinized and tested by the Underwriters Laboratory. The Food and Drug Administration provides a similar function with respect to medicine and food.
A thought that has been absent, so far as I am aware, in the recent discussion about this topic is that while it is important for these steps to be taken, what has gone on previously? Surely the ‘experts’ who were testifying about various “sciences” in court in the furtherance of trying to
convict a defendant had to be aware that there was no scientific underpinning to them; that there existed no replicable protocols, or statistics,
that it was not hard science and in fact often was junk science.
While I could envision a few people doing so out of ignorance, it strains credulity to say that is the case with everybody. As people with advance degrees, they are familiar with general scientific methods. How could others who omit information regarding the statistical significance of a match or those who embellish, or even outright lie about it do so? Is there no conscience involved?
In my view, someone would have to be quite evil to give false or even simply inaccurate testimony against somebody, knowing that they were on trial often for serious crimes. Also unmentioned is the need to identify each and every “expert” who has engaged in any of these types of fraud,
and the need to vigorously prosecute them to the fullest extent of the law. Supervisors under whose watch fraud has occurred should, wherever it can be shown that they either looked the other way or even simply were negligent in their oversight, be fired and publicly disgraced, and permanently barred from ever working for the government again.
Their actions have, in my view, undermined, for quite a long time to come, the ability of the public who is aware of these issues, to feel safe as they
go about their daily lives, much as violent criminals who are concentrated in a particular geographical area do so.
In fact, I think that the level of fear could be higher. The odds of me, as an exoneree and therefore a high public profile, along with extremely competent lawyers working on my lawsuits, ever being wrongfully convicted again, are extremely low.
However, even with these differences between myself and the general public without those resources I, too, am once again afraid. Imagine that even being 880 miles away from a crime is not enough of an assurance of not being wrongfully arrested for it. As Dwight Gomas stated as reported in The Daily News “It is just a nightmare knowing that someone that’s innocent can be picked up off the street and held. That scares me now. It’s like I’m walking on eggshells. I try to cover my tracks for everywhere I go.”
Think, too, about sitting as a defendant at the defense table and listening to expert testimony that you don’t fully understand that is offered as evidence against you. Imagine being equipped with a court-appointed, overworked, under funded, and quite possibly incompetent, lawyer to represent you. Do you have confidence in what the outcome of such a trial would be, despite your innocence?
Jeff Deskovic
Creation Of A National Institute
Of Forensic Sciences Is Critical
On September 3, 2009, a story appeared in the Daily News regarding Dwight Gomas, who had spent 17 months in Rikers Island in New York for robbery before it came to light that the fingerprints which formed the basis for his arrest did not, in fact, match him.
According to the News, “He was in fact 880 miles away, living in Atlanta, when armed thugs robbed Theresa’s Gold Lynch jewelry store in
Howard Beach in October 2003. A year later, Gomas was arrested for the robbery by United States marshals. Detective Eileen Barrett had
matched a partial index finger print from the crime scene to Gomas, whose prints were on file after an arrest for driving with a suspended license in Brooklyn. It was the only arrest on his record other than a juvenile bust.
A second NYPD detective, Charles Schenkel, confirmed Barrett’s identification, according to court papers. Gomas maintained his innocence
before the grand jury, but was indicted and couldn’t make the $30,000 bail. His Legal Aid lawyer advised him to accept a plea offer of five years in prison, but he refused. Gomas was headed to trial for a Queens jewelry store stickup when a veteran detective routinely checked his identification.
‘When I looked at it, I said, ‘You know what? is is a screw up; this is not his fingerprints,’ said Detective Daniel Perruzza, according to a
court transcript. ‘It looks similar, but ‘similar’ doesn’t cut it in prints. It has to be an exact match,’ Perruzza said. During his 523 days in jail, he lost his spot in a cooking school and his girlfriend and their child moved in with another man.”
As I have long maintained, the idea that people could be arrested and wrongfully convicted for crimes that they are innocent of is quite
scary. But the idea that one could be wrongfully arrested for a crime that happens in another state nearly 1000 miles away is even scarier. Yet it is a reality.
According to The Innocence Project’s website, “A report from the National Academy of Sciences released this year found that fingerprint
analysis was among the forensic disciplines that has not ‘been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.’ According to The Innocence Project, “Stephan Cowans spent more than five years in Massachusetts prisons after a false fingerprint match led to his conviction for a crime he didn’t commit.”
But this problem goes way beyond merely cases in which fingerprint evidence is a factor. According to the Just Science website, which is
a broad-based group committed to having scientific standards in place regarding forensic science so that only scientifically based, sound procedures are the foundation of any forensic evidence and testimony in criminal cases: “Many forensic disciplines have evolved primarily through their use in individual cases and have not been scientifically validated or standardized. Forensic analysts sometimes testify in cases without a proper scientific basis for their findings. Testimony about more dubious forensic disciplines, such as efforts to match a
defendant’s teeth to marks on a victim or attempts to compare a defendant’s voice to a voicemail recording, are cloaked in science but lack even the most basic scientific standards.
Even within forensic disciplines that are more firmly grounded in science, evidence is often made to sound more precise than it should. For example, analysts will testify that hairs from a crime scene ‘match’ or ‘are consistent with’ defendants’ hair – but because scientific research on validity and reliability of hair analysis is lacking, they have no way of knowing how rare these similarities are, so there is no way to know how meaningful this evidence is.
In approximately 50% of DNA exonerations, unvalidated or improper forensic science contributed to the wrongful conviction. But, while DNA exonerations are a window into the effect of unvalidated or improper forensic science contributing to wrongful convictions, DNA does not solve the problem. Experts estimate that only 5-10% of all criminal cases involve biological evidence that could be subjected to DNA testing. In the other 90-95% of crimes, DNA testing is not an option – so the criminal justice system relies on other kinds of evidence, including forensic disciplines that may not be scientifically sound or properly conducted.”
With that background, the need for a National Institute of Forensic Science created by Congress is obvious. Roy Brown spent 15 years in
prison in New York for a murder he was innocent of. Innocence Project Co-Founder Peter Neufeld testified at a Congressional Hearing that,
“‘The forensic dentist [at Roy Brown’s trial] used what was then the prevailing method of comparing bite marks found on a body with the dentures of a suspect,’ said Neufeld. ‘He examined them and decided that he had a match with Roy’s bite. He so testified in court, and Roy was convicted.’”
At the moment, Congress is holding hearings and considering creating just such an entity. Fueling the inquiry is a report that was recently released. According to the Just Science website, “In 2006, Congress appropriated funds to the National Academy of Sciences (NAS)
to thoroughly study the fundamental underpinnings of forensic science and its applications in our criminal justice system. A blue-ribbon NAS panel was formed – including scientists, academics, a retired federal judge, and other notable experts. Over an eighteen-month period, the group held several public hearings and gathered comprehensive research on forensic disciplines.
This Committee on Identifying the Needs of the Forensic Sciences Community released its final report, Strengthening Forensic Science in
the United States: A Path Forward, in February 2009. In releasing their report, the co-chairs of the committee emphasized that there was a consistent theme throughout their deliberations.”
The report says: “The forensic science system, encompassing both research and practice, has serious problems that can only be addressed
by a national commitment to overhaul the current structure that supports the forensic science community in this country. This can only be done with effective leadership at the highest levels of both federal and state governments, pursuant to national standards, and with a
significant infusion of federal funds.”
The report’s key findings include:
• “With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently,
and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.” (NAS Report, page S-5)
• “…What is needed to support and oversee the forensic science community is a new, strong and independent entity that could take on the
tasks that would be assigned to it in a manner that is as objective and free of bias as possible – one with no ties to the past and with the authority and resources to implement a fresh agenda…” (NAS Report p S-13)
• “There are great disparities among existing forensic science operations in federal, state and local law enforcement jurisdictions and agencies…
It is clear, however, that any approach to overhauling the existing system needs to address and help minimize the community’s current
fragmentation and inconsistent practices.” (NAS Report, page S-4)
• “Although research has been done in some disciplines, there is a notable dearth of peer-reviewed, published studies establishing the scientific
bases and validity of many forensic methods.” (NAS Report, page S-6)
• “A body of research is [also] required to establish the limits and measures of performance and to address the impact of sources of variability
and potential bias.” (NAS Report, page S-6)
• “…The adversarial process relating to the admission and exclusion of scientific evidence is not suited to the task of finding ‘scientific truth’…Judicial review, by itself, will not cure the infirmities of the forensic science community.” (NAS Report, page S-20)” According to that report, here is what reform would look like: “Assessment of validity and reliability:
• The federal government should establish a science-based federal entity or agency, the National Institute for Forensic Sciences (NIFS), to review
both existing and new techniques, devices and assays to determine the extent to which they are scientifically valid and reliable for use in the criminal justice system.
• NIFS should establish standards for reliable application of forensic science disciplines in criminal cases (e.g. match criteria) to ensure the use of forensics within prescribed parameters.
• NIFS should have compliance authority to ensure the discontinuation of invalid or unreliable methods.
Research:
• NIFS should fund both basic and applied research to test the validity and reliability of extant forensic methods, devices and assays; and to
support the development of new technologies to solve crime.
Quality assurance, accreditation and certification:
• NIFS should set enforceable standards for public and private laboratories, as well as for individual professionals, that conduct forensic tests
and examinations intended for use in courts.
• Quality controls and quality assurance programs should be established to secure the integrity of the ultimate forensic product in laboratories
and in courts. This should include (but not be limited to) validation of devices for particular labs; written protocols and procedures; minimum
qualifications, staff training and proficiency testing for personnel; and parameters for data interpretation, report writing and testimony.
Training:
• NIFS should support comprehensive training and professional development in the forensic science field in order to build the capacity for research
and quality assurance, and to bring current and new forensic science personnel into compliance with established qualifications and standards.
Oversight
• The Director of NIFS, in consultation with science-based federal government agencies, should appoint a Forensic Science National Commission
composed of science professionals to set broad research priorities and to promulgate forensic science standards.
• The Director of NIFS, in consultation with science and criminal justice-based federal government agencies, should also appoint an Advisory
Committee to provide input to the Commission and NIFS with regard to its various responsibilities.”
There are many junk sciences that lead to wrongful convictions. There is bullet lead analysis, which falsely purports to be able to trace the bullet fired from a gun used in a crime all the way back to the box from which it originated.
According to The Innocence Project’s website: “Hair microscopy, bite mark comparisons, firearm testing or tool mark analysis – have never been subjected to rigorous scientific evaluation. Other methods – such as serology (commonly known as blood typing) – have been properly validated
but are sometimes improperly conducted or inaccurately conveyed in trial testimony. In some cases, forensic analysts have fabricated results
or engaged in other misconduct.”
With each new revelation of a junk science, it becomes apparent that perhaps thousands more have been wrongfully convicted. Considering that we are talking about people’s lives, it is high time that we have a National Institute for Forensic Science. After all, in other disciplines oversight agencies and standards are in place. Electrical devices are scrutinized and tested by the Underwriters Laboratory. The Food and Drug Administration provides a similar function with respect to medicine and food.
A thought that has been absent, so far as I am aware, in the recent discussion about this topic is that while it is important for these steps to be taken, what has gone on previously? Surely the ‘experts’ who were testifying about various “sciences” in court in the furtherance of trying to
convict a defendant had to be aware that there was no scientific underpinning to them; that there existed no replicable protocols, or statistics,
that it was not hard science and in fact often was junk science.
While I could envision a few people doing so out of ignorance, it strains credulity to say that is the case with everybody. As people with advance degrees, they are familiar with general scientific methods. How could others who omit information regarding the statistical significance of a match or those who embellish, or even outright lie about it do so? Is there no conscience involved?
In my view, someone would have to be quite evil to give false or even simply inaccurate testimony against somebody, knowing that they were on trial often for serious crimes. Also unmentioned is the need to identify each and every “expert” who has engaged in any of these types of fraud,
and the need to vigorously prosecute them to the fullest extent of the law. Supervisors under whose watch fraud has occurred should, wherever it can be shown that they either looked the other way or even simply were negligent in their oversight, be fired and publicly disgraced, and permanently barred from ever working for the government again.
Their actions have, in my view, undermined, for quite a long time to come, the ability of the public who is aware of these issues, to feel safe as they
go about their daily lives, much as violent criminals who are concentrated in a particular geographical area do so.
In fact, I think that the level of fear could be higher. The odds of me, as an exoneree and therefore a high public profile, along with extremely competent lawyers working on my lawsuits, ever being wrongfully convicted again, are extremely low.
However, even with these differences between myself and the general public without those resources I, too, am once again afraid. Imagine that even being 880 miles away from a crime is not enough of an assurance of not being wrongfully arrested for it. As Dwight Gomas stated as reported in The Daily News “It is just a nightmare knowing that someone that’s innocent can be picked up off the street and held. That scares me now. It’s like I’m walking on eggshells. I try to cover my tracks for everywhere I go.”
Think, too, about sitting as a defendant at the defense table and listening to expert testimony that you don’t fully understand that is offered as evidence against you. Imagine being equipped with a court-appointed, overworked, under funded, and quite possibly incompetent, lawyer to represent you. Do you have confidence in what the outcome of such a trial would be, despite your innocence?
Westchester Guardian/Catherine Wilson.
Thursday, September 17, 2009
Catherine Wilson, Bureau Chief
Northern Westchester
Protecting Your Assets From
Your Own Family
In August, 2007, the Guardian reported on the prevalence of identity the in our society. At that time we revealed that the biggest threat to an individual’s identity and assets is their own family. Who else knows your date of birth, your mother’s maiden name, the first school you attended,
your last address, and even the name of your pets? When a family member uses your information to obtain a loan for themselves, it constitutes identity the and they can be criminally prosecuted.
But there is a growing area of the that is posing an even greater cause for concern for our local residents, particularly the elderly and the disabled – the the of assets covered under a power-of-attorney.
In recent months the Guardian has learned of numerous cases in Westchester communities where a family discovered, upon the demise of a loved one, that their loved one’s estate was depleted using a pre-existing power-of-attorney (POA). Until this month, depleting the entire life savings
of a family member with a power-of-attorney was relatively easy to do in New York State. All the unethical family member needed to do was coerce their loved one in granting them full powers over their assets by signing a POA form in the presence of a notary.
Prior state laws incorrectly surmised that a notary would assure that the POA was being signed by the individual of their own free will. Notaries
Public regularly witness the signing of a variety of legal documents and are supposed to be independent of the parties involved. However, there is no audit mechanism in place in New York State to verify that the notary witnessing the signature was indeed independent and verified the capability of the signer and their willingness to conduct the transaction.
In one case that the Guardian has observed, the notaries involved did not conduct any due diligence whatsoever, thereby allowing the fraud to
happen.
Virtually anyone over the age of 18 can become a Notary Public in New York State – all it takes is a $15 fee and a passing grade on a relatively
simple test, the answers to which are supplied online by local County Clerks’ offices. It is all too easy under current New York State Notary Public laws for a family member to become a notary and “witness” the coerced form signed by the elderly victim.
Dementia victims, individuals suffering from mental and cognitive problems, poorly educated individuals, and even individuals who are incredibly trusting, are particularly vulnerable to this type of the . An elderly individual who is no longer able to take care of their finances and affairs often turns to a family-member for assistance. That family member, once aware of the amount of assets in the elderly person’s accounts, may see an opportunity to obtain those assets all for themselves, rather than waiting to receive their portion, if any, in accordance with the elderly relative’s will.
Once the unscrupulous individual has a power-of-attorney in their hands, they can now make all banking, investment, and real estate transactions for their victim. In each and every case the Guardian uncovered, by the time other family members realized what had happened, the money and even the houses were long gone. The Guardian uncovered cases where local thieves bought automobiles and homes claiming they were for the use of the victim, even moving the victim into the houses for a period of time to “justify” the purchases, and then transferring the deeds to themselves, circumventing any wishes the elderly person expressly noted in their Last Will and Testament for the distribution of their funds and assets.
Both our Federal and State governments inadvertently encourage the elderly and disabled to shift their money out of their own control thanks to Medicaid and disability laws. Individuals who need nursing home care or extensive medical assistance, such as the mentally ill and disabled, cannot
usually afford the high cost of such extended intensive care and must apply to the government for assistance.
However, in order to be able to qualify for government aid, the individual must first “spend down” their assets – they will only qualify for help once they can prove that they have almost nothing left in their own name with which to pay for their care. Once an elderly individual realizes that they are in the early stages of dementia, they will often be concurrently advised by their attorneys and financial planners to immediately start transferring their assets out of their own name to “protect them from Medicare”.
One of the first steps an elder care attorney will take with a new client is to draft a power-of-attorney form for them, entrusting the power over their assets to a family member or close friend. These powers can be drafted on behalf of the dementia victim to be used only once the individual no longer has any ability to act in their own behalf. However, banks and investment firms rarely ask for confirmation that an individual is incapacitated when accepting a power-of-attorney (POA) for a transaction.
The role of the elder care attorney is to assure that the individual is not being coerced in such situations; an attorney will interview the client
separate from the family members to assure that they are acting of their own free will. However, current state laws do not mandate that the power-of-attorney forms be drafted in the presence of an attorney. Anyone with access to the internet can download a free form and coerce the victim into signing it in front of a notary. As the Guardian uncovered, the notaries do not always assure that the individual signing the form is not being coerced. Nor are notaries required to take any training which would help them to identify the signs of coercion.
To deter some of these acts of fraud, New York State recently enacted new laws to expand the protection for individuals drafting a power-of-
attorney. As of September 1, 2009, the new power-of-attorney forms have several new clauses to protect the individual issuing the powers.
The new form’s name alone indicates the changes, the title was changed from “Statutory Short Form Power of Attorney” to “Statutory Short Form and Other Powers of Attorney For Financial Estate Planning”, recognizing the fact that most individuals drafting this form are doing so as part of an estate plan and that the POA should work in tandem with the wishes and directives outlined in the individual’s “Last Will and Testament”.
The new laws do not affect most POA’s already in effect prior to September 1, 2009. However, the law specifically requires new
POA’s for the following types of powers:
§5-1502J for “Construction” authority - for authority over benefits from governmental programs or civil and military service
§5-1502K for “Construction” authority - for authority on health care billing and payment matters; records reports and statements
§5-1504 for “Acceptance of statutory short form power of attorney”;
§5-1510 for “Special Proceedings”
The new state laws expand the definitions used in a POA including “Capacity”. Capacity is now defined by the State to mean “the ability
to comprehend the nature and consequences of the act of executing and granting, revoking, amending or modifying a power of attorney, any
provision in a power of attorney, or the authority of any person to act as agent under a power of attorney”.
In short, the definition as expanded raises questions as to the capacity of a cognitively-impaired, mentally disabled, or victim of dementia, even a mild version, to authorize a POA on their behalf.
Such restrictions may now require legal guardians to be appointed to review a POA for these individuals. While this may appear to be added
protection, the Guardian has revealed in recent months the kickback nature of the guardianship process in our courts, where such appointments routinely are given to attorneys whose only qualification is the amount of their campaign contributions to the judge appointing them. In one local instance, the court appointed a convicted felon to handle the affairs of a disabled young woman who was the victim of Aspersers’. The Surrogate’s Court has never required that this felon account for the $2 million in his care, in defiance with New York State laws. This sad case was reported by the Guardian in February and March of this year. To date, the court has done nothing to rectify this situation.
To circumvent individuals who possess POA’s from “gifting” any funds in their victim’s bank accounts to themselves, the new state law has
expanded its definition of a “Statutory major gifts rider”. According to the law, this rider allows the individual to define who and what they
intend to gift, if anything. The new law mandates that the “statutory major gifts rider and the statutory short form power of attorney it supplements must be read together as a single instrument”. Anyone acting on a POA, and attempting to make a gift to themselves from a bank account or other asset, will now have to produce the gifts rider as evidence along with the POA.
The individual who holds the authorities granted in a POA is referred to as an “agent” since they are acting on behalf of the person who signed
the POA (referred to as the “principal”). The new law has expanded the definition of agent to now include an individual who has a “fiduciary relationship with the principal”. The purpose of this new clause in the law is to avoid circumstances such as the recent organ-selling cases from disabled and poor victims. In this 10-year investigation uncovered by the Federal Bureau of Investigation, nursing home and health care employees were providing names of individuals who had no family members to the organ-selling ring who then obtained POA’s and other legal rights from their victims, enabling the crime. The new state law attempts to avoid “third-party” POA’s where the individual appointed as agent has no reason to be acting “in the best interests” of the principal.
A person who has a “fiduciary relationship” with another is someone who is legally expected to be acting “in the best interests” of the
other. While this new law has yet to be tested and applied in the courts, it does appear that the intent of the New York State lawmakers is to have agents prove that the purchases and expenditures they were making on behalf of the principal were indeed “in their best interests”. If not, this law could conceivably allow the other family members to legally challenge those purchases and any depletion of assets and funds.
Note – due to the stranglehold that the New York State Bar Association has over the New York State legislature by virtue of their lobbying
efforts and campaign contributions, only an attorney may offer legal advice in the State of New York. Therefore, this reporter cannot state the obvious here without running afoul of local lawyers, so any inferences we make about this new law have to be couched in terms such as “conceivably” and “perhaps” - not our usual direct style of reporting. But the trusts our readers’ ability to decipher this of the new law for themselves!
The new law specifically addresses what happens to a POA when the individual authorizing it becomes incapacitated – the new forms have
a clause that states “this POWER OF ATTORNEY shall not be affected by my subsequent incapacity unless I have stated otherwise below, under
“Modification”. The principal can elect to revoke the POA completely once they become incapacitated. The law also covers the size of the print that must be used on the POA form and specific cautions to be noted to protect the principal signing this form.
A new “Caution” clause has been added to the POA form: “CAUTION TO THE PRINCIPAL: Your power of Attorney is an important document. As the “principal”, you give the person whom you choose (your “agent”) authority to spend your money and sell or dispose of your property
during your lifetime without telling you. You do not lose your authority to act even though you have given your agent similar authority.
When your agent exercises this authority, he or she must act according to any instructions you have provided or, where there are no specific instructions, in your best interests. “Important Information for the Agent” at the end of this document describes your agent’s responsibilities.
Your agent can act on your behalf only after signing the Power of Attorney before a notary public. You can request information from your agent at any time. If you are revoking a prior Power of Attorney by executing this Power of Attorney, you should provide written notice of the revocation to your prior agent(s) and to the financial institutions where your accounts are located.
You can revoke or terminate your Power of Attorney at any time for any reason as long as you are of sound mind. If you are no longer of sound
mind, a court can remove an agent for acting improperly.
Your agent cannot make health care decisions for you. You may execute a ‘Health Care Proxy’ to do this. The law governing Powers of Attorney
is contained in the New York General Obligations Law, Article 5, Title 15. This law is available at a law library, or online through the New York
State Senate or Assembly websites, www.senate.state.ny.us or www.assembly.state.ny.us.
If there is anything about this document that you do not understand, you should ask a lawyer of your own choosing to explain it to you.” In addition, the new law imposes the following obligations upon the agent named in the POA: “When you accept the authority granted under this Power of Attorney, a special legal relationship is created between you and the principal. This relationship imposes on you legal responsibilities
that continue until you resign or the Power of Attorney is terminated or revoked. You must:
• Act according to any instructions from the principal, or, where there are no instructions, in the principal’s best interest;
• Avoid conflicts that would impair your ability to act in the principal’s best interest;
• Keep the principal’s property separate and distinct from any assets you own or control, unless otherwise permitted by law;
• Keep a record of all receipts, payments, and transactions conducted for the principal; and
• Disclose your identity as an agent whenever you act for the principal by writing or printing the principal’s name and signing your own name as “agent” in either of the following manner: (Principal’s Name) by (Your Signature) as Agent, or (your signature) as Agent for (Principal’s Name).”
While this new law instructs to act in the best interest of the principal and in accordance with any written instructions by the principal, it does not address whether those written instructions will hold up in court.
Many local elderly residents have already shifted the control of their assets to other family members to “protect them from Medicare”, under the
advice of their attorneys. Ethical family members understand that those funds are not their own money and hold them aside to be used for their
loved one’s needs.
Since these funds and assets were transferred to other family members before their death, and are then part of that family member’s portfolio,
these funds and assets are not considered to be part of the estate when the elderly individual dies. To assure that the family member holding the transferred assets does not keep them all to themselves, the elderly family member usually leaves written instructions as to how those funds and assets should be distributed upon their demise.
Unfortunately, those written instructions do not hold up in court. The Guardian has evidence of how one local attorney, a Law Secretary with the White Plains Supreme Court, advised his elderly mother to shift $150,000 of her funds to him to “protect them from Medicare”. When she died eight years later, those funds now legally belonged to her son. The attorney’s mother had left written instructions to address the distribution of these funds including allocating a small portion of them to each of her grand-children. But the attorney chose to ignore his dying mother’s
wishes and kept the funds for himself instead. When the children’s mother took this attorney to court to protest him not acting in his mother’s best interests by defying her written instructions, the mother was sanctioned and fined by the judge for daring to pursue this for her children.
So, while the new POA law may allow for written instructions to be followed, court orders in similar instances show that judges ignore these laws. As the Guardian has noted in previous reports on these issues, the courts offer little support to victims of fraud since so many fraud cases are perpetrated by attorneys and officers of the court to begin with. The best defense therefore that an elderly resident has is to find the most trustworthy member of their family, or circle of friends, to entrust the handling of their affairs to.
The new law is explained in detail by the New York State Bar Association in their online publication at www.nysba.org. The NYSBA has provided
a sixty-nine page analysis covering all of the areas of this new law. Since the changes are extensive and cover sensitive areas such as access to medical billing and government records and, since this article cannot be construed by the reader as legal advice, any local resident concerned about their existing power-of-attorneys, or their need for a POA, should consult with a trusted attorney who is experienced in the drafting, and pitfalls, of POA’s.
Catherine Wilson, Bureau Chief
Northern Westchester
Protecting Your Assets From
Your Own Family
In August, 2007, the Guardian reported on the prevalence of identity the in our society. At that time we revealed that the biggest threat to an individual’s identity and assets is their own family. Who else knows your date of birth, your mother’s maiden name, the first school you attended,
your last address, and even the name of your pets? When a family member uses your information to obtain a loan for themselves, it constitutes identity the and they can be criminally prosecuted.
But there is a growing area of the that is posing an even greater cause for concern for our local residents, particularly the elderly and the disabled – the the of assets covered under a power-of-attorney.
In recent months the Guardian has learned of numerous cases in Westchester communities where a family discovered, upon the demise of a loved one, that their loved one’s estate was depleted using a pre-existing power-of-attorney (POA). Until this month, depleting the entire life savings
of a family member with a power-of-attorney was relatively easy to do in New York State. All the unethical family member needed to do was coerce their loved one in granting them full powers over their assets by signing a POA form in the presence of a notary.
Prior state laws incorrectly surmised that a notary would assure that the POA was being signed by the individual of their own free will. Notaries
Public regularly witness the signing of a variety of legal documents and are supposed to be independent of the parties involved. However, there is no audit mechanism in place in New York State to verify that the notary witnessing the signature was indeed independent and verified the capability of the signer and their willingness to conduct the transaction.
In one case that the Guardian has observed, the notaries involved did not conduct any due diligence whatsoever, thereby allowing the fraud to
happen.
Virtually anyone over the age of 18 can become a Notary Public in New York State – all it takes is a $15 fee and a passing grade on a relatively
simple test, the answers to which are supplied online by local County Clerks’ offices. It is all too easy under current New York State Notary Public laws for a family member to become a notary and “witness” the coerced form signed by the elderly victim.
Dementia victims, individuals suffering from mental and cognitive problems, poorly educated individuals, and even individuals who are incredibly trusting, are particularly vulnerable to this type of the . An elderly individual who is no longer able to take care of their finances and affairs often turns to a family-member for assistance. That family member, once aware of the amount of assets in the elderly person’s accounts, may see an opportunity to obtain those assets all for themselves, rather than waiting to receive their portion, if any, in accordance with the elderly relative’s will.
Once the unscrupulous individual has a power-of-attorney in their hands, they can now make all banking, investment, and real estate transactions for their victim. In each and every case the Guardian uncovered, by the time other family members realized what had happened, the money and even the houses were long gone. The Guardian uncovered cases where local thieves bought automobiles and homes claiming they were for the use of the victim, even moving the victim into the houses for a period of time to “justify” the purchases, and then transferring the deeds to themselves, circumventing any wishes the elderly person expressly noted in their Last Will and Testament for the distribution of their funds and assets.
Both our Federal and State governments inadvertently encourage the elderly and disabled to shift their money out of their own control thanks to Medicaid and disability laws. Individuals who need nursing home care or extensive medical assistance, such as the mentally ill and disabled, cannot
usually afford the high cost of such extended intensive care and must apply to the government for assistance.
However, in order to be able to qualify for government aid, the individual must first “spend down” their assets – they will only qualify for help once they can prove that they have almost nothing left in their own name with which to pay for their care. Once an elderly individual realizes that they are in the early stages of dementia, they will often be concurrently advised by their attorneys and financial planners to immediately start transferring their assets out of their own name to “protect them from Medicare”.
One of the first steps an elder care attorney will take with a new client is to draft a power-of-attorney form for them, entrusting the power over their assets to a family member or close friend. These powers can be drafted on behalf of the dementia victim to be used only once the individual no longer has any ability to act in their own behalf. However, banks and investment firms rarely ask for confirmation that an individual is incapacitated when accepting a power-of-attorney (POA) for a transaction.
The role of the elder care attorney is to assure that the individual is not being coerced in such situations; an attorney will interview the client
separate from the family members to assure that they are acting of their own free will. However, current state laws do not mandate that the power-of-attorney forms be drafted in the presence of an attorney. Anyone with access to the internet can download a free form and coerce the victim into signing it in front of a notary. As the Guardian uncovered, the notaries do not always assure that the individual signing the form is not being coerced. Nor are notaries required to take any training which would help them to identify the signs of coercion.
To deter some of these acts of fraud, New York State recently enacted new laws to expand the protection for individuals drafting a power-of-
attorney. As of September 1, 2009, the new power-of-attorney forms have several new clauses to protect the individual issuing the powers.
The new form’s name alone indicates the changes, the title was changed from “Statutory Short Form Power of Attorney” to “Statutory Short Form and Other Powers of Attorney For Financial Estate Planning”, recognizing the fact that most individuals drafting this form are doing so as part of an estate plan and that the POA should work in tandem with the wishes and directives outlined in the individual’s “Last Will and Testament”.
The new laws do not affect most POA’s already in effect prior to September 1, 2009. However, the law specifically requires new
POA’s for the following types of powers:
§5-1502J for “Construction” authority - for authority over benefits from governmental programs or civil and military service
§5-1502K for “Construction” authority - for authority on health care billing and payment matters; records reports and statements
§5-1504 for “Acceptance of statutory short form power of attorney”;
§5-1510 for “Special Proceedings”
The new state laws expand the definitions used in a POA including “Capacity”. Capacity is now defined by the State to mean “the ability
to comprehend the nature and consequences of the act of executing and granting, revoking, amending or modifying a power of attorney, any
provision in a power of attorney, or the authority of any person to act as agent under a power of attorney”.
In short, the definition as expanded raises questions as to the capacity of a cognitively-impaired, mentally disabled, or victim of dementia, even a mild version, to authorize a POA on their behalf.
Such restrictions may now require legal guardians to be appointed to review a POA for these individuals. While this may appear to be added
protection, the Guardian has revealed in recent months the kickback nature of the guardianship process in our courts, where such appointments routinely are given to attorneys whose only qualification is the amount of their campaign contributions to the judge appointing them. In one local instance, the court appointed a convicted felon to handle the affairs of a disabled young woman who was the victim of Aspersers’. The Surrogate’s Court has never required that this felon account for the $2 million in his care, in defiance with New York State laws. This sad case was reported by the Guardian in February and March of this year. To date, the court has done nothing to rectify this situation.
To circumvent individuals who possess POA’s from “gifting” any funds in their victim’s bank accounts to themselves, the new state law has
expanded its definition of a “Statutory major gifts rider”. According to the law, this rider allows the individual to define who and what they
intend to gift, if anything. The new law mandates that the “statutory major gifts rider and the statutory short form power of attorney it supplements must be read together as a single instrument”. Anyone acting on a POA, and attempting to make a gift to themselves from a bank account or other asset, will now have to produce the gifts rider as evidence along with the POA.
The individual who holds the authorities granted in a POA is referred to as an “agent” since they are acting on behalf of the person who signed
the POA (referred to as the “principal”). The new law has expanded the definition of agent to now include an individual who has a “fiduciary relationship with the principal”. The purpose of this new clause in the law is to avoid circumstances such as the recent organ-selling cases from disabled and poor victims. In this 10-year investigation uncovered by the Federal Bureau of Investigation, nursing home and health care employees were providing names of individuals who had no family members to the organ-selling ring who then obtained POA’s and other legal rights from their victims, enabling the crime. The new state law attempts to avoid “third-party” POA’s where the individual appointed as agent has no reason to be acting “in the best interests” of the principal.
A person who has a “fiduciary relationship” with another is someone who is legally expected to be acting “in the best interests” of the
other. While this new law has yet to be tested and applied in the courts, it does appear that the intent of the New York State lawmakers is to have agents prove that the purchases and expenditures they were making on behalf of the principal were indeed “in their best interests”. If not, this law could conceivably allow the other family members to legally challenge those purchases and any depletion of assets and funds.
Note – due to the stranglehold that the New York State Bar Association has over the New York State legislature by virtue of their lobbying
efforts and campaign contributions, only an attorney may offer legal advice in the State of New York. Therefore, this reporter cannot state the obvious here without running afoul of local lawyers, so any inferences we make about this new law have to be couched in terms such as “conceivably” and “perhaps” - not our usual direct style of reporting. But the trusts our readers’ ability to decipher this of the new law for themselves!
The new law specifically addresses what happens to a POA when the individual authorizing it becomes incapacitated – the new forms have
a clause that states “this POWER OF ATTORNEY shall not be affected by my subsequent incapacity unless I have stated otherwise below, under
“Modification”. The principal can elect to revoke the POA completely once they become incapacitated. The law also covers the size of the print that must be used on the POA form and specific cautions to be noted to protect the principal signing this form.
A new “Caution” clause has been added to the POA form: “CAUTION TO THE PRINCIPAL: Your power of Attorney is an important document. As the “principal”, you give the person whom you choose (your “agent”) authority to spend your money and sell or dispose of your property
during your lifetime without telling you. You do not lose your authority to act even though you have given your agent similar authority.
When your agent exercises this authority, he or she must act according to any instructions you have provided or, where there are no specific instructions, in your best interests. “Important Information for the Agent” at the end of this document describes your agent’s responsibilities.
Your agent can act on your behalf only after signing the Power of Attorney before a notary public. You can request information from your agent at any time. If you are revoking a prior Power of Attorney by executing this Power of Attorney, you should provide written notice of the revocation to your prior agent(s) and to the financial institutions where your accounts are located.
You can revoke or terminate your Power of Attorney at any time for any reason as long as you are of sound mind. If you are no longer of sound
mind, a court can remove an agent for acting improperly.
Your agent cannot make health care decisions for you. You may execute a ‘Health Care Proxy’ to do this. The law governing Powers of Attorney
is contained in the New York General Obligations Law, Article 5, Title 15. This law is available at a law library, or online through the New York
State Senate or Assembly websites, www.senate.state.ny.us or www.assembly.state.ny.us.
If there is anything about this document that you do not understand, you should ask a lawyer of your own choosing to explain it to you.” In addition, the new law imposes the following obligations upon the agent named in the POA: “When you accept the authority granted under this Power of Attorney, a special legal relationship is created between you and the principal. This relationship imposes on you legal responsibilities
that continue until you resign or the Power of Attorney is terminated or revoked. You must:
• Act according to any instructions from the principal, or, where there are no instructions, in the principal’s best interest;
• Avoid conflicts that would impair your ability to act in the principal’s best interest;
• Keep the principal’s property separate and distinct from any assets you own or control, unless otherwise permitted by law;
• Keep a record of all receipts, payments, and transactions conducted for the principal; and
• Disclose your identity as an agent whenever you act for the principal by writing or printing the principal’s name and signing your own name as “agent” in either of the following manner: (Principal’s Name) by (Your Signature) as Agent, or (your signature) as Agent for (Principal’s Name).”
While this new law instructs to act in the best interest of the principal and in accordance with any written instructions by the principal, it does not address whether those written instructions will hold up in court.
Many local elderly residents have already shifted the control of their assets to other family members to “protect them from Medicare”, under the
advice of their attorneys. Ethical family members understand that those funds are not their own money and hold them aside to be used for their
loved one’s needs.
Since these funds and assets were transferred to other family members before their death, and are then part of that family member’s portfolio,
these funds and assets are not considered to be part of the estate when the elderly individual dies. To assure that the family member holding the transferred assets does not keep them all to themselves, the elderly family member usually leaves written instructions as to how those funds and assets should be distributed upon their demise.
Unfortunately, those written instructions do not hold up in court. The Guardian has evidence of how one local attorney, a Law Secretary with the White Plains Supreme Court, advised his elderly mother to shift $150,000 of her funds to him to “protect them from Medicare”. When she died eight years later, those funds now legally belonged to her son. The attorney’s mother had left written instructions to address the distribution of these funds including allocating a small portion of them to each of her grand-children. But the attorney chose to ignore his dying mother’s
wishes and kept the funds for himself instead. When the children’s mother took this attorney to court to protest him not acting in his mother’s best interests by defying her written instructions, the mother was sanctioned and fined by the judge for daring to pursue this for her children.
So, while the new POA law may allow for written instructions to be followed, court orders in similar instances show that judges ignore these laws. As the Guardian has noted in previous reports on these issues, the courts offer little support to victims of fraud since so many fraud cases are perpetrated by attorneys and officers of the court to begin with. The best defense therefore that an elderly resident has is to find the most trustworthy member of their family, or circle of friends, to entrust the handling of their affairs to.
The new law is explained in detail by the New York State Bar Association in their online publication at www.nysba.org. The NYSBA has provided
a sixty-nine page analysis covering all of the areas of this new law. Since the changes are extensive and cover sensitive areas such as access to medical billing and government records and, since this article cannot be construed by the reader as legal advice, any local resident concerned about their existing power-of-attorneys, or their need for a POA, should consult with a trusted attorney who is experienced in the drafting, and pitfalls, of POA’s.
Thursday, September 10, 2009
Westchester Guardian/The Advocate/Andy Spano.
Thursday, September 10, 2009
The Advocate
Richard Blassberg
Rubber Stamp’ Legislators Grapple
With Spano/Schwartz Disaster
Last Tuesday morning, September 1, the committee conference room on the eighth floor of the County Office Building was filled to standing room only and spilling into the corridor when the session got underway at 10:10am; a session Bill Ryan, Chairman of the County Legislature, defined with his opening remark, “We have called this meeting of the Committee Of The Whole.”
In attendance were Susan Tolchin, Deputy County Executive, County Attorney Charlene Indelicato, County Legislators, Chairman Bill Ryan, John Nonna, Gordon Burrows, George Oros, Bernice Spreckman, Lyndon Williams, Vito Pinto, Mike Kaplowitz, Peter Harckham, Ken Jenkins, Tom Abinanti, Judy Myers, and William Burton. Additionally there was Stuart Gerson of Epstein, Becker & Greene, retained outside counsel. Absent
were Legislators Lois Bronz, who was ill, Marty Rogowski, who was “out of town”, James Maisano, working at his law office, and Jose Alvarado, in Yonkers “in his district.”
Referring to a meeting two weeks earlier, Ryan informed the packed room, “I committed that we would continue to hold meetings of the Committee of the Whole to put everyone in the best position to work with what the Committee needs to know to deal with this matter.”
There was an unmistakable sense of anticipation in the room, heightened by the unprecedented circumstances; two weeks of prior publicity and mounting anxiety over many unanswered questions.
The Spano Administration, as it turns out, had been negotiating with the federal government, the Justice Department and the Federal Court for some time, perhaps two years, in an effort to avoid getting jammed up as they now are.
Obviously, without consultation with, or revelation to, their Rubber Stamp Partners In Crime, Andy and Larry had been keeping their dealings a big secret, confident that whatever mess they made, their bought-and-paid-for legislature would simply have to go along with the consequences the Federal Court would impose on their constituents, the taxpayers and families they are supposed to represent.
Nevertheless, no one had broken from the ranks to ask the obvious question, “Where was the $52 million spent between 2000 and 2006, so wrongfully calculated and deceptively accounted for that a clique of five shrewd ‘not-for-profit’ litigants calling themselves the Anti-Discrimination Center of Metro New York could stand in for the Justice Department under the terms of the False Claims Act and get the already-much-overtaxed, struggling homeowners and business community of “wealthy” Westchester County caught with their upper and lower body parts (depending on gender) in the wringer.
Attorney Gerson, referring to the $51.5 million that Susan Tolchin would say was “going toward the construction,” declared to the legislators very early on, “You can’t build 750 units for this amount of money, you can’t build 750 units for twice that amount of money. You will vote for it, or
you will vote against it. It is not subject to change.”
Tolchin would then acknowledge a total package of $62.5 million, supposedly including the Anti-Discrimination Center’s $2.5 million legal expenses, plus penalties, but clearly in no way accounting for the County’s past, and ongoing legal and other expenses likely to bring the cost to
taxpayers well over $65 million if the Board votes to accept.
Gerson told the Board, “The number that’s in there now is lower than the original number. It was a spirited negotiation.” he identified Assistant United States Attorney James L. Cott, Chief of the Civil Division of the Southern District of New York as the negotiator for the federal government.
Mike Kaplowitz began, “Everything seems to cut against...” but, was interrupted by Gerson, who told him firmly, “There is no opportunity for change. The Government of the United States needs a sum certain. The money that the County is spending is for the County to leverage outside
money.”
Kaplowitz was uneasy, frustrated and feeling hemmed in. Gerson came back with, “It doesn’t say the County is going to build 750 units, but that it will get 750 units built.”
Lyndon Williams then spoke up, questioning whether a cap could be established to insure that the County would not be pushed into additional expenses over time. Mr. Gerson responded to Williams’ concerns, saying, “Neither we (the Spano Administration) nor the government feels
there is any ambiguity at all!”
Vito Pinto asked about the cost of the federal monitor and his staff, and was told it would likely be $250,000 in years one and two, and $175,000 in the years that follow.
Legislator John Nonna began to question what the sources of the so-called “supplemental funds” would be, seeking specificity. Then Peter Harckham moved the discussion toward issues of zoning as they might apply to placement of affordable housing units; and, the phrase “as appropriate” in the language of the settlement, as he put it, “based upon my own experiences as a builder of affordable housing.”
Of course, the notion of zoning problems suggested litigation, and, a response came quickly from County Attorney Charlene Indelicato, who declared, “I do not anticipate litigation. It would be absolutely a last resort.”
But John Nonna now jumped back in, asking, “Who gets to determine whether a proposal is appropriate or not? It looks as though the monitor gets to determine what is appropriate.”
Now, Stuart Gerson came back into the discussion with, “Remember we wanted the monitor. Our view was that we didn’t want the Court.” He went
on to say, when pressed further by Nonna, “I’m not going to say there will never be litigation.” Then, pausing, he clarified his comment with “It’s more likely some other municipality will seek judicial review, not the County.”
To his credit, Mike Kaplowitz was becoming increasingly more uncomfortable with the legislators’ lack of options. Gerson, at one point, told the Board with reference to the impact of the settlement, “There is nothing that changes the separation of powers in County Government;” a dubious
conclusion at best.
Kaplowitz, obviously sensing just how boxed-in Spano and Schwartz had left him, and his 16 fellow legislators, next queried Gersen, “Can we wait until we know the Implemental Plan before acting on the settlement?
The devil is in the details.” But Gerson came right back, telling the Board, “You must approve the implementation.” Kaplowitz protested, “This legislation did not have sufficient input.” Then, he asked, “Once we give approval of $51.6 million, is the implementation out of our hands?”
Tom Abinanti, who earlier had expressed a great deal of apprehension, some of which had begun to upset Chairman Ryan, now asked, “What’s the process?”
To which, County Attorney Indelicato quickly responded, “We don’t know;” and, Abinanti declared, “We don’t know either.”
At that point, Chairman Ryan acknowledged the general concern that the Board would need to approve the first $21 million “for bonding purposes.” He referred to the legislators’ task as “looking at this at the eleventh hour and realizing we didn’t have a hand in it.”
The $65 million dilemma Westchester families and taxpayers are now confronted with, and County Legislators are now attempting to wrestle with, grew out of the misappropriation of $52 million in federal block grants and misrepresentations made to the federal government with respect to the use of those funds intended by the government to promulgate and promote affordable, fair housing opportunities throughout the County.
In simple language, Andy Spano, Larry Schwartz and their Administration “knowingly” took $52 million in grants from the federal government, put it into hands and purposes never intended under the terms of the grants, and then repeatedly lied to the government about their failure to do
as promised.
The Federal False Claims Act, in pertinent part, is reproduced here:
“The False Claims Act (“FCA”) provides, in pertinent part, that:
(a) Any person who (1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; (3) conspires to defraud the Government by getting a false or fraudulent claim paid or approved by the Government;. . . or (7) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government, is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person . . . .
(b) For purposes of this section, the terms “knowing” and “knowingly” mean that a person, with respect to information (1) has actual
knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of
the truth or falsity of the information, and no proof of specific intent to defraud is required.
31 U.S.C. § 3729. While the False Claims Act imposes liability only when the claimant acts “knowingly,” it does not require that the person submitting the claim have actual knowledge that the claim is false. A person who acts in reckless disregard or in deliberate ignorance of the truth or
falsity of the information, also can be found liable under the Act. 31 U.S.C. 3729(b).
In sum, the False Claims Act imposes liability on any person who submits a claim to the federal government that he or she knows (or should know) is false. An example may be a physician who submits a bill to Medicare for medical services she knows she has not provided. The False Claims Act also imposes liability on an individual who may knowingly submit a false record in order to obtain payment from the government. An example of this may include a government contractor who submits records that he knows (or should know) is false and that indicate compliance with certain contractual or regulatory requirements. The third area of liability includes those instances in which someone may obtain money from the federal government to which he may not be entitled, and then uses false statements or records in order to retain the money. An example of this so-called “reverse false claim” may include a hospital who obtains interim payments from Medicare throughout the year, and then knowingly files a false cost report at the end of the year in order to avoid making a refund to the Medicare program.
In addition to its substantive provisions, the FCA provides that private parties may bring an action on behalf of the United States. 31 U.S.C. 3730 (b). These private parties, known as “qui tam relators,” may share in a percentage of the proceeds from an FCA action or settlement.
Section 3730(d)(1) of the FCA provides, with some exceptions, that a qui tam relator, when the Government has intervened in the lawsuit, shall receive at least 15 percent but not more than 25 percent of the proceeds of the FCA action depending upon the extent to which the relator substantially contributed to the prosecution of the action. When the Government does not intervene, section 3730(d)(2) provides that the relator
shall receive an amount that the court decides is reasonable and shall be not less than 25 percent and not more than 30 percent.
The FCA provides protection to qui tam relators who are discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of their employment as a result of their furtherance of an action under the FCA. 31 U.S.C.
3730(h). Remedies include reinstatement with comparable seniority as the qui tam relator would have had but for the discrimination, two times the amount of any back pay, interest on any back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.”
The Advocate
Richard Blassberg
Rubber Stamp’ Legislators Grapple
With Spano/Schwartz Disaster
Last Tuesday morning, September 1, the committee conference room on the eighth floor of the County Office Building was filled to standing room only and spilling into the corridor when the session got underway at 10:10am; a session Bill Ryan, Chairman of the County Legislature, defined with his opening remark, “We have called this meeting of the Committee Of The Whole.”
In attendance were Susan Tolchin, Deputy County Executive, County Attorney Charlene Indelicato, County Legislators, Chairman Bill Ryan, John Nonna, Gordon Burrows, George Oros, Bernice Spreckman, Lyndon Williams, Vito Pinto, Mike Kaplowitz, Peter Harckham, Ken Jenkins, Tom Abinanti, Judy Myers, and William Burton. Additionally there was Stuart Gerson of Epstein, Becker & Greene, retained outside counsel. Absent
were Legislators Lois Bronz, who was ill, Marty Rogowski, who was “out of town”, James Maisano, working at his law office, and Jose Alvarado, in Yonkers “in his district.”
Referring to a meeting two weeks earlier, Ryan informed the packed room, “I committed that we would continue to hold meetings of the Committee of the Whole to put everyone in the best position to work with what the Committee needs to know to deal with this matter.”
There was an unmistakable sense of anticipation in the room, heightened by the unprecedented circumstances; two weeks of prior publicity and mounting anxiety over many unanswered questions.
The Spano Administration, as it turns out, had been negotiating with the federal government, the Justice Department and the Federal Court for some time, perhaps two years, in an effort to avoid getting jammed up as they now are.
Obviously, without consultation with, or revelation to, their Rubber Stamp Partners In Crime, Andy and Larry had been keeping their dealings a big secret, confident that whatever mess they made, their bought-and-paid-for legislature would simply have to go along with the consequences the Federal Court would impose on their constituents, the taxpayers and families they are supposed to represent.
Nevertheless, no one had broken from the ranks to ask the obvious question, “Where was the $52 million spent between 2000 and 2006, so wrongfully calculated and deceptively accounted for that a clique of five shrewd ‘not-for-profit’ litigants calling themselves the Anti-Discrimination Center of Metro New York could stand in for the Justice Department under the terms of the False Claims Act and get the already-much-overtaxed, struggling homeowners and business community of “wealthy” Westchester County caught with their upper and lower body parts (depending on gender) in the wringer.
Attorney Gerson, referring to the $51.5 million that Susan Tolchin would say was “going toward the construction,” declared to the legislators very early on, “You can’t build 750 units for this amount of money, you can’t build 750 units for twice that amount of money. You will vote for it, or
you will vote against it. It is not subject to change.”
Tolchin would then acknowledge a total package of $62.5 million, supposedly including the Anti-Discrimination Center’s $2.5 million legal expenses, plus penalties, but clearly in no way accounting for the County’s past, and ongoing legal and other expenses likely to bring the cost to
taxpayers well over $65 million if the Board votes to accept.
Gerson told the Board, “The number that’s in there now is lower than the original number. It was a spirited negotiation.” he identified Assistant United States Attorney James L. Cott, Chief of the Civil Division of the Southern District of New York as the negotiator for the federal government.
Mike Kaplowitz began, “Everything seems to cut against...” but, was interrupted by Gerson, who told him firmly, “There is no opportunity for change. The Government of the United States needs a sum certain. The money that the County is spending is for the County to leverage outside
money.”
Kaplowitz was uneasy, frustrated and feeling hemmed in. Gerson came back with, “It doesn’t say the County is going to build 750 units, but that it will get 750 units built.”
Lyndon Williams then spoke up, questioning whether a cap could be established to insure that the County would not be pushed into additional expenses over time. Mr. Gerson responded to Williams’ concerns, saying, “Neither we (the Spano Administration) nor the government feels
there is any ambiguity at all!”
Vito Pinto asked about the cost of the federal monitor and his staff, and was told it would likely be $250,000 in years one and two, and $175,000 in the years that follow.
Legislator John Nonna began to question what the sources of the so-called “supplemental funds” would be, seeking specificity. Then Peter Harckham moved the discussion toward issues of zoning as they might apply to placement of affordable housing units; and, the phrase “as appropriate” in the language of the settlement, as he put it, “based upon my own experiences as a builder of affordable housing.”
Of course, the notion of zoning problems suggested litigation, and, a response came quickly from County Attorney Charlene Indelicato, who declared, “I do not anticipate litigation. It would be absolutely a last resort.”
But John Nonna now jumped back in, asking, “Who gets to determine whether a proposal is appropriate or not? It looks as though the monitor gets to determine what is appropriate.”
Now, Stuart Gerson came back into the discussion with, “Remember we wanted the monitor. Our view was that we didn’t want the Court.” He went
on to say, when pressed further by Nonna, “I’m not going to say there will never be litigation.” Then, pausing, he clarified his comment with “It’s more likely some other municipality will seek judicial review, not the County.”
To his credit, Mike Kaplowitz was becoming increasingly more uncomfortable with the legislators’ lack of options. Gerson, at one point, told the Board with reference to the impact of the settlement, “There is nothing that changes the separation of powers in County Government;” a dubious
conclusion at best.
Kaplowitz, obviously sensing just how boxed-in Spano and Schwartz had left him, and his 16 fellow legislators, next queried Gersen, “Can we wait until we know the Implemental Plan before acting on the settlement?
The devil is in the details.” But Gerson came right back, telling the Board, “You must approve the implementation.” Kaplowitz protested, “This legislation did not have sufficient input.” Then, he asked, “Once we give approval of $51.6 million, is the implementation out of our hands?”
Tom Abinanti, who earlier had expressed a great deal of apprehension, some of which had begun to upset Chairman Ryan, now asked, “What’s the process?”
To which, County Attorney Indelicato quickly responded, “We don’t know;” and, Abinanti declared, “We don’t know either.”
At that point, Chairman Ryan acknowledged the general concern that the Board would need to approve the first $21 million “for bonding purposes.” He referred to the legislators’ task as “looking at this at the eleventh hour and realizing we didn’t have a hand in it.”
The $65 million dilemma Westchester families and taxpayers are now confronted with, and County Legislators are now attempting to wrestle with, grew out of the misappropriation of $52 million in federal block grants and misrepresentations made to the federal government with respect to the use of those funds intended by the government to promulgate and promote affordable, fair housing opportunities throughout the County.
In simple language, Andy Spano, Larry Schwartz and their Administration “knowingly” took $52 million in grants from the federal government, put it into hands and purposes never intended under the terms of the grants, and then repeatedly lied to the government about their failure to do
as promised.
The Federal False Claims Act, in pertinent part, is reproduced here:
“The False Claims Act (“FCA”) provides, in pertinent part, that:
(a) Any person who (1) knowingly presents, or causes to be presented, to an officer or employee of the United States Government or a member of the Armed Forces of the United States a false or fraudulent claim for payment or approval; (2) knowingly makes, uses, or causes to be made or used, a false record or statement to get a false or fraudulent claim paid or approved by the Government; (3) conspires to defraud the Government by getting a false or fraudulent claim paid or approved by the Government;. . . or (7) knowingly makes, uses, or causes to be made or used, a false record or statement to conceal, avoid, or decrease an obligation to pay or transmit money or property to the Government, is liable to the United States Government for a civil penalty of not less than $5,000 and not more than $10,000, plus 3 times the amount of damages which the Government sustains because of the act of that person . . . .
(b) For purposes of this section, the terms “knowing” and “knowingly” mean that a person, with respect to information (1) has actual
knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of
the truth or falsity of the information, and no proof of specific intent to defraud is required.
31 U.S.C. § 3729. While the False Claims Act imposes liability only when the claimant acts “knowingly,” it does not require that the person submitting the claim have actual knowledge that the claim is false. A person who acts in reckless disregard or in deliberate ignorance of the truth or
falsity of the information, also can be found liable under the Act. 31 U.S.C. 3729(b).
In sum, the False Claims Act imposes liability on any person who submits a claim to the federal government that he or she knows (or should know) is false. An example may be a physician who submits a bill to Medicare for medical services she knows she has not provided. The False Claims Act also imposes liability on an individual who may knowingly submit a false record in order to obtain payment from the government. An example of this may include a government contractor who submits records that he knows (or should know) is false and that indicate compliance with certain contractual or regulatory requirements. The third area of liability includes those instances in which someone may obtain money from the federal government to which he may not be entitled, and then uses false statements or records in order to retain the money. An example of this so-called “reverse false claim” may include a hospital who obtains interim payments from Medicare throughout the year, and then knowingly files a false cost report at the end of the year in order to avoid making a refund to the Medicare program.
In addition to its substantive provisions, the FCA provides that private parties may bring an action on behalf of the United States. 31 U.S.C. 3730 (b). These private parties, known as “qui tam relators,” may share in a percentage of the proceeds from an FCA action or settlement.
Section 3730(d)(1) of the FCA provides, with some exceptions, that a qui tam relator, when the Government has intervened in the lawsuit, shall receive at least 15 percent but not more than 25 percent of the proceeds of the FCA action depending upon the extent to which the relator substantially contributed to the prosecution of the action. When the Government does not intervene, section 3730(d)(2) provides that the relator
shall receive an amount that the court decides is reasonable and shall be not less than 25 percent and not more than 30 percent.
The FCA provides protection to qui tam relators who are discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of their employment as a result of their furtherance of an action under the FCA. 31 U.S.C.
3730(h). Remedies include reinstatement with comparable seniority as the qui tam relator would have had but for the discrimination, two times the amount of any back pay, interest on any back pay, and compensation for any special damages sustained as a result of the discrimination, including litigation costs and reasonable attorneys’ fees.”
Westchester Guardian/In Our Opinion/Our Reader Respond.
Thursday, September 10, 2009
In Our Opinion...
The Crucible
We said last week that the imposed affordable housing settlement would “bring the County Legislators’ moment of truth.” Having attended last Tuesday’s session, a so-called Meeting Of The Committee Of The Whole, we are further convinced that this social and financial disaster dumped on the County Legislators and, more importantly, through them, onto the families and taxpayers of Westchester, will be the crucible that will expose the wrongful relationship between the executive and legislative branches of our County government; the willful short-circuiting of checks and balances and separation of powers that are supposed to exist in our democracy.
The ugly reality for Westchester families, particularly those struggling to pay their highest-in-the-nation property taxes while feeding, sheltering, and educating their children, is that the present county executive, now completing his 12th year in that office under the guidance of Larry Schwartz, several years ago succeeded in nullifying the independent will and power of the so-called County Legislature. Quite simply, that was accomplished by seizing control of the Democratic Party machinery, particularly the fundraising operation, and then distributing money, campaign contributions, to the candidates of Andy’s and Larry’s choosing for positions on the County Legislature.
In addition, they abused the appointment of legislators’ spouses, etc. to County jobs, and the granting of County contracts, where possible, without the use of bidding, thus completing the scheme. Essentially, Spano & Company have, for several years now, used our hard-earned tax dollars to buy themselves the most controlled, fundamentally corrupted legislature money could buy; 13 Democrats, every one of them beholden to the County Executive for campaign contributions, selection, and ‘getting out the vote’.
What a cynical scam all these years. Why have a county legislature at all if its nothing but a rubber stamp for what turns out to be a devious, inept administration; one which even attempted to rip off and deceive the federal government.
Witnessing the failure of the overwhelming majority of legislators present to voice objection to, or even identify the culprits, Andy Spano, Larry Schwartz, and their mouthpiece, Susan Tolchin, who was present, and who now arrogantly presents a ‘take-it-or-leave-it’ proposition to them, was evidence enough of their all-too-willing co-conspiracy; one big happy family.
Consider the awesome power and control County Executive Andy Spano possesses. Not only does he control the District Attorney, who continues to look the other way, but also, for $1,000-a-week each, there’s nothing he hasn’t been able to get by his super-majority legislators; even a broken-down, mold-infested old building his buddies couldn’t pawn off on anyone else. Oh, what’s $20 million anyway? It’s only taxpayers’ money, after all. Now these legislators are confronted with a mess brought about by Spano & Company’s mismanagement, misappropriation, and deception; essentially an attempt to work a fraud against the federal government, for which they got caught, and for which taxpayers and homeowners will now be made to pay. If they were of the right frame of mind, as an autonomous, independent body of the People’s representatives, the legislators would have hired their own independent, outside counsel. The fact that they have failed to do so speaks volumes about their sincerity and their intention.
None of what is now occuring would be the case but for the bigger fraud Westchester voters have allowed Spano and his players to get away with for several years; one rigged election after another.
We think there is no better time than right now to rid our County of such political parasites, and all of their hack friends. It’s time to retire every single incumbent in County government now standing for re-election. They are all inter-connected, regardless of party, in a network of corruption that the honest, hard-working People of Westchester can no longer afford, and need to put an end to.
Our Readers Respond...
A Voice Of Wisdom From Yonkers
Dear Editor:
I am writing to urge registered Democrats, especially, to vote in the coming primary, and all in the November general election. All elected offices are important, but none currently exceed the importance of the District Attorney, in my opinion. I am a senior, and a woman, and I have been disturbed by a number of actions taken by the former District Attorney, Jeanine Pirro, and the current DA, Janet DiFiore. Jeff Deskovic, in his column, has reported that five of Jeanine Pirro’s convictions have been overturned in a higher court. I think it is likely there are many more as I am aware of a few myself. I have been told by a reliable source that close to 200 convictions need to be looked at in Westchester County from the past 20 years. That means many of those claiming innocence could actually be innocent and the real perpetrators still posing a threat to our citizens. Tony Castro has said he will take a second look at suspicious, weak, convictions.
He has also pledged to represent the rights and interests of all citizens, and has a record of integrity and excellence when serving as Assistant District Attorney in The Bronx. He supervised hundreds of ADAs, handling thousands of indictments per year, and, personally conducted homicide trials.
I believe much exculpatory data exists and continues to be withheld by DA Janet DiFiore. Only in Federal Court did Janet DiFiore admit 52 boxes and almost 400 pages of very exculpatory evidence were withheld in Anthony DiSimone’s case. Jeanine Pirro tried him, and Janet DiFiore tried to retry him despite the higher court decision. Janet DiFiore also seems confused on the good cop/bad cop score. She withholds information in the
Christopher Ridley shooting case that would point to impulsive, reckless action by one County cop, and possibly questionable action by others. But, she really shows her hand in Yonkers where she protected some brutal cops, and indicted their victims, some with severe injuries. She also has gone after some good cops who have dared to question her authority or her actions. Most Yonkers cops act professionally, but Commissioner Hartnett seems to have “a few stormtroopers” on staff.
I can’t help but think about the established fact that some 26 seals on voting machines were broken in Yonkers the last time we voted for DA in this County. Janet DiFiore won by only three percent of the vote over Tony Castro, and it was decided in Yonkers. Did the Yonkers Police have a part in this?
I suggest there should be a citizens’ watch over the building where the voting machines are held until the vote is made official; not only in Yonkers, but in any other community where the citizens believe there could be any tampering with their vote. Until power-hungry and/or corrupt district attorneys can be brought up on charges of prosecutorial misconduct and police officials charged for known compromising or coercive behavior on
suspects, Lady Justice will remain blind, all right, and the scales of justice weighted against the people.
Help vote for a real change. The primary is an essential step to breathing cleaner air in the County.
A Raging Granny In Yonkers Who Is A Former Probation Officer
Major Ethical Violations In Yorktown
Dear Editor:
Sometimes if you just listen, you can learn a lot. People have been stopping me all over town and I have just been listening. Many other people
have had their own personal “run-in” with our Highway Superintendent, Eric DiBartolo. I am glad that some other brave souls have not been intimidated by his threats and have publicly come forward to discuss their disturbing experiences. More disturbing is that nothing has been done.
Therefore, I will be submitting a formal complaint to the Town Ethics Committee to have a formal investigation of the following issues:
1. Over and over we hear the story about bribes being taken by not only our Highway Superintendent, Eric DiBartolo, but also by
other Yorktown elected officials. Not only is nothing being done, but there are not even any Hollywood-type denials by these officials.
2. The Highway Superintendent, Eric DiBartolo, used town employees to help gather signatures on his petition for the Board of Elections. We are not talking about a few signatures. One employee got 90 signatures and another got 48. The total number required was only about 400. They got more than 25 percent of the required signatures. Isn’t there some Civil Service rule about town employees engaging in political activity?
Was this done during work time? Did they “volunteer”?
3. The Highway Superintendent, Eric DiBartolo, was driving around town in an unmarked police car, pulling people over. Is this just another part of his expanded duties as “Director of Labor Operations”? Or was he impersonating a police officer? I am going to try that and see what happens.
4. The Highway Superintendent, Eric DiBartolo, has red lights and sirens on his town vehicle. He uses it for his work as a county arson investigator.
Why is a Town Vehicle being used for that activity? Does the Town have any liability if something happens during a response? And someone is getting reimbursed for mileage during that activity. Who?
5. How many times did we read about the Highway Superintendent, Eric DiBartolo, giving no-bid contracts to his friends and family? As an isolated incident, maybe you can let it slide, but with all the rest of the activity, is there some pattern here?
These questions have been out there for months and all I hear is silence. I will be walking around town talking to people and I am sure I will hear more stuff. Stay tuned and maybe we will have some answers. It is time for the empire of Little Caesar to come to an end.
Peter Antonaros, Yorktown
Reader Appreciates The Guardian
Dear Editor:
I would like to take this opportunity to thank the staff of The Westchester Guardian for providing the readers of Westchester County with material that they would not be able to find in any other publication.
Of particular interest is Richard Blassberg’s “The Court Report” with its reporting of court proceedings, and its reproduction of court documents,
which give our citizens an opportunity to observe and understand the actual operation of our judicial system.
I would also like to single out John Leo Tufts, Jr.’s “This Week In History,” from which I and other readers may supplement our knowledge of the history and traditions of our great country, and of its place in the history of the world.
I look forward to a long life of publication for The Westchester Guardian, and to many years of unique and informative weekly reporting.
Eugene Batizat, M.A., Yonkers
Reader Joins Health Insurance Debate
Dear Editor:
Regarding health care reform:
1. What percentage of one’s income should be spent on health insurance?
2. What additional percent of one’s income is one recommended to save for health care costs not covered by insurance? Must insurance
premiums be so high that one cannot afford to save for such costs?
3. Private insurance companies have adopted what is feared about a “public” insurance: restricted choice of doctors; gags on information about (or at least non-coverage of) “un-endorsed” treatments and methods; unaffordable premiums. On the one hand, what would be the advantage of a public option that mimics current private options? On the other hand, what advantage do the current easiest-to-learn-about private options have over a public option? Does not focusing on whether there should be a public option distract from specifics of what a health insurance package, public or private, should include?
4. What reason is there to agitate for or against “health care reform” before learning its planned specific details? Do the lawmakers voting on
it know the details? When will they be publicized? How will premiums be determined? Who will decide which treatments and procedures to declare “gold star”, to accept at all? In such decisions, how will human rights, science, commerce, ideology, and social engineering interplay?
Does the current package already contain or expect specific endorsements and, if so, what? Both people who fear ulterior motives and people
with ulterior motives need to know.
5. Is not mandatory health insurance, whether paid to the government or a private company, like a tax?
Jeanette Wolfberg,
Mount Kisco
Treat All Animals With Kindness
Dear Editor:
As a youngster, Christine spent much time with the chubby, happy, wiggly puppy her father gave her. But as Pepper grew into a big dog and Christine became a teenager preoccupied with other activities, Pepper was relegated to a lonely life outdoors, continually chained to a doghouse.
On the few occasions Christine visited the doghouse, Pepper “would go crazy with excitement and would still obey the commands I’d taught
him years before.”
One day, when Christine came home from college, Pepper was gone. Her father explained since nobody wanted to care for Pepper, Christine’s brother shot him.
Today, an adult, Christine is wracked with guilt. She has cried many times for Pepper and his sad life. She urges people to let their dogs live indoors, and to always exercise, love and protect them.
After reading Christine’s story in the Summer 2009 issue of PETA’s Animal Times, I hugged Lexi, my hound dog, and I thanked God for the opportunity to share my home with her and my two adopted hamsters.
Christine conveys an important message. And when we treat animals with kindness, we enrich our own lives as well as theirs.
Joel Freedman
Canandaigua, NY
The writer chairs the Public Education Committee of Animal Rights Advocates of upstate New York.
In Our Opinion...
The Crucible
We said last week that the imposed affordable housing settlement would “bring the County Legislators’ moment of truth.” Having attended last Tuesday’s session, a so-called Meeting Of The Committee Of The Whole, we are further convinced that this social and financial disaster dumped on the County Legislators and, more importantly, through them, onto the families and taxpayers of Westchester, will be the crucible that will expose the wrongful relationship between the executive and legislative branches of our County government; the willful short-circuiting of checks and balances and separation of powers that are supposed to exist in our democracy.
The ugly reality for Westchester families, particularly those struggling to pay their highest-in-the-nation property taxes while feeding, sheltering, and educating their children, is that the present county executive, now completing his 12th year in that office under the guidance of Larry Schwartz, several years ago succeeded in nullifying the independent will and power of the so-called County Legislature. Quite simply, that was accomplished by seizing control of the Democratic Party machinery, particularly the fundraising operation, and then distributing money, campaign contributions, to the candidates of Andy’s and Larry’s choosing for positions on the County Legislature.
In addition, they abused the appointment of legislators’ spouses, etc. to County jobs, and the granting of County contracts, where possible, without the use of bidding, thus completing the scheme. Essentially, Spano & Company have, for several years now, used our hard-earned tax dollars to buy themselves the most controlled, fundamentally corrupted legislature money could buy; 13 Democrats, every one of them beholden to the County Executive for campaign contributions, selection, and ‘getting out the vote’.
What a cynical scam all these years. Why have a county legislature at all if its nothing but a rubber stamp for what turns out to be a devious, inept administration; one which even attempted to rip off and deceive the federal government.
Witnessing the failure of the overwhelming majority of legislators present to voice objection to, or even identify the culprits, Andy Spano, Larry Schwartz, and their mouthpiece, Susan Tolchin, who was present, and who now arrogantly presents a ‘take-it-or-leave-it’ proposition to them, was evidence enough of their all-too-willing co-conspiracy; one big happy family.
Consider the awesome power and control County Executive Andy Spano possesses. Not only does he control the District Attorney, who continues to look the other way, but also, for $1,000-a-week each, there’s nothing he hasn’t been able to get by his super-majority legislators; even a broken-down, mold-infested old building his buddies couldn’t pawn off on anyone else. Oh, what’s $20 million anyway? It’s only taxpayers’ money, after all. Now these legislators are confronted with a mess brought about by Spano & Company’s mismanagement, misappropriation, and deception; essentially an attempt to work a fraud against the federal government, for which they got caught, and for which taxpayers and homeowners will now be made to pay. If they were of the right frame of mind, as an autonomous, independent body of the People’s representatives, the legislators would have hired their own independent, outside counsel. The fact that they have failed to do so speaks volumes about their sincerity and their intention.
None of what is now occuring would be the case but for the bigger fraud Westchester voters have allowed Spano and his players to get away with for several years; one rigged election after another.
We think there is no better time than right now to rid our County of such political parasites, and all of their hack friends. It’s time to retire every single incumbent in County government now standing for re-election. They are all inter-connected, regardless of party, in a network of corruption that the honest, hard-working People of Westchester can no longer afford, and need to put an end to.
Our Readers Respond...
A Voice Of Wisdom From Yonkers
Dear Editor:
I am writing to urge registered Democrats, especially, to vote in the coming primary, and all in the November general election. All elected offices are important, but none currently exceed the importance of the District Attorney, in my opinion. I am a senior, and a woman, and I have been disturbed by a number of actions taken by the former District Attorney, Jeanine Pirro, and the current DA, Janet DiFiore. Jeff Deskovic, in his column, has reported that five of Jeanine Pirro’s convictions have been overturned in a higher court. I think it is likely there are many more as I am aware of a few myself. I have been told by a reliable source that close to 200 convictions need to be looked at in Westchester County from the past 20 years. That means many of those claiming innocence could actually be innocent and the real perpetrators still posing a threat to our citizens. Tony Castro has said he will take a second look at suspicious, weak, convictions.
He has also pledged to represent the rights and interests of all citizens, and has a record of integrity and excellence when serving as Assistant District Attorney in The Bronx. He supervised hundreds of ADAs, handling thousands of indictments per year, and, personally conducted homicide trials.
I believe much exculpatory data exists and continues to be withheld by DA Janet DiFiore. Only in Federal Court did Janet DiFiore admit 52 boxes and almost 400 pages of very exculpatory evidence were withheld in Anthony DiSimone’s case. Jeanine Pirro tried him, and Janet DiFiore tried to retry him despite the higher court decision. Janet DiFiore also seems confused on the good cop/bad cop score. She withholds information in the
Christopher Ridley shooting case that would point to impulsive, reckless action by one County cop, and possibly questionable action by others. But, she really shows her hand in Yonkers where she protected some brutal cops, and indicted their victims, some with severe injuries. She also has gone after some good cops who have dared to question her authority or her actions. Most Yonkers cops act professionally, but Commissioner Hartnett seems to have “a few stormtroopers” on staff.
I can’t help but think about the established fact that some 26 seals on voting machines were broken in Yonkers the last time we voted for DA in this County. Janet DiFiore won by only three percent of the vote over Tony Castro, and it was decided in Yonkers. Did the Yonkers Police have a part in this?
I suggest there should be a citizens’ watch over the building where the voting machines are held until the vote is made official; not only in Yonkers, but in any other community where the citizens believe there could be any tampering with their vote. Until power-hungry and/or corrupt district attorneys can be brought up on charges of prosecutorial misconduct and police officials charged for known compromising or coercive behavior on
suspects, Lady Justice will remain blind, all right, and the scales of justice weighted against the people.
Help vote for a real change. The primary is an essential step to breathing cleaner air in the County.
A Raging Granny In Yonkers Who Is A Former Probation Officer
Major Ethical Violations In Yorktown
Dear Editor:
Sometimes if you just listen, you can learn a lot. People have been stopping me all over town and I have just been listening. Many other people
have had their own personal “run-in” with our Highway Superintendent, Eric DiBartolo. I am glad that some other brave souls have not been intimidated by his threats and have publicly come forward to discuss their disturbing experiences. More disturbing is that nothing has been done.
Therefore, I will be submitting a formal complaint to the Town Ethics Committee to have a formal investigation of the following issues:
1. Over and over we hear the story about bribes being taken by not only our Highway Superintendent, Eric DiBartolo, but also by
other Yorktown elected officials. Not only is nothing being done, but there are not even any Hollywood-type denials by these officials.
2. The Highway Superintendent, Eric DiBartolo, used town employees to help gather signatures on his petition for the Board of Elections. We are not talking about a few signatures. One employee got 90 signatures and another got 48. The total number required was only about 400. They got more than 25 percent of the required signatures. Isn’t there some Civil Service rule about town employees engaging in political activity?
Was this done during work time? Did they “volunteer”?
3. The Highway Superintendent, Eric DiBartolo, was driving around town in an unmarked police car, pulling people over. Is this just another part of his expanded duties as “Director of Labor Operations”? Or was he impersonating a police officer? I am going to try that and see what happens.
4. The Highway Superintendent, Eric DiBartolo, has red lights and sirens on his town vehicle. He uses it for his work as a county arson investigator.
Why is a Town Vehicle being used for that activity? Does the Town have any liability if something happens during a response? And someone is getting reimbursed for mileage during that activity. Who?
5. How many times did we read about the Highway Superintendent, Eric DiBartolo, giving no-bid contracts to his friends and family? As an isolated incident, maybe you can let it slide, but with all the rest of the activity, is there some pattern here?
These questions have been out there for months and all I hear is silence. I will be walking around town talking to people and I am sure I will hear more stuff. Stay tuned and maybe we will have some answers. It is time for the empire of Little Caesar to come to an end.
Peter Antonaros, Yorktown
Reader Appreciates The Guardian
Dear Editor:
I would like to take this opportunity to thank the staff of The Westchester Guardian for providing the readers of Westchester County with material that they would not be able to find in any other publication.
Of particular interest is Richard Blassberg’s “The Court Report” with its reporting of court proceedings, and its reproduction of court documents,
which give our citizens an opportunity to observe and understand the actual operation of our judicial system.
I would also like to single out John Leo Tufts, Jr.’s “This Week In History,” from which I and other readers may supplement our knowledge of the history and traditions of our great country, and of its place in the history of the world.
I look forward to a long life of publication for The Westchester Guardian, and to many years of unique and informative weekly reporting.
Eugene Batizat, M.A., Yonkers
Reader Joins Health Insurance Debate
Dear Editor:
Regarding health care reform:
1. What percentage of one’s income should be spent on health insurance?
2. What additional percent of one’s income is one recommended to save for health care costs not covered by insurance? Must insurance
premiums be so high that one cannot afford to save for such costs?
3. Private insurance companies have adopted what is feared about a “public” insurance: restricted choice of doctors; gags on information about (or at least non-coverage of) “un-endorsed” treatments and methods; unaffordable premiums. On the one hand, what would be the advantage of a public option that mimics current private options? On the other hand, what advantage do the current easiest-to-learn-about private options have over a public option? Does not focusing on whether there should be a public option distract from specifics of what a health insurance package, public or private, should include?
4. What reason is there to agitate for or against “health care reform” before learning its planned specific details? Do the lawmakers voting on
it know the details? When will they be publicized? How will premiums be determined? Who will decide which treatments and procedures to declare “gold star”, to accept at all? In such decisions, how will human rights, science, commerce, ideology, and social engineering interplay?
Does the current package already contain or expect specific endorsements and, if so, what? Both people who fear ulterior motives and people
with ulterior motives need to know.
5. Is not mandatory health insurance, whether paid to the government or a private company, like a tax?
Jeanette Wolfberg,
Mount Kisco
Treat All Animals With Kindness
Dear Editor:
As a youngster, Christine spent much time with the chubby, happy, wiggly puppy her father gave her. But as Pepper grew into a big dog and Christine became a teenager preoccupied with other activities, Pepper was relegated to a lonely life outdoors, continually chained to a doghouse.
On the few occasions Christine visited the doghouse, Pepper “would go crazy with excitement and would still obey the commands I’d taught
him years before.”
One day, when Christine came home from college, Pepper was gone. Her father explained since nobody wanted to care for Pepper, Christine’s brother shot him.
Today, an adult, Christine is wracked with guilt. She has cried many times for Pepper and his sad life. She urges people to let their dogs live indoors, and to always exercise, love and protect them.
After reading Christine’s story in the Summer 2009 issue of PETA’s Animal Times, I hugged Lexi, my hound dog, and I thanked God for the opportunity to share my home with her and my two adopted hamsters.
Christine conveys an important message. And when we treat animals with kindness, we enrich our own lives as well as theirs.
Joel Freedman
Canandaigua, NY
The writer chairs the Public Education Committee of Animal Rights Advocates of upstate New York.
Westchester Guardian/The Court Report/Dan Schorr/Janet Difiore.
Thursday. September 10, 2009
The Court Report
By Richard Blassberg
Dan Schorr Refutes DA DiFiore’s Statements
Victim Issued Letter To The Court Denouncing Minimal Sentence
Last Tuesday, September 1st, Dan Schorr, Republican candidate for Westchester District Attorney, stepped up his criticism of the handling of David Sanchez by that Office under Janet DiFiore. Schorr had previously strongly criticized DiFiore on August 17th for having offered Sanchez, who had been charged with Attempted Murder and Assault for savagely beating his ex-girlfriend nearly to death for more than five hours, holding her hostage in her car, a plea-bargained minimal sentence of five years in State prison.
Following Schorr’s remarks on August 17th, the DA’s Office issued a written response claiming that there had been no plea deal, and that the Court had made the sentence determination, and not the District Attorney’s Office.
At his press conference on Tuesday, Mr. Schorr said, “The Court record clearly indicates that the sentencing Mr. Sanchez received was a result of a negotiated plea bargain that was orchestrated by the DA’s Office.”
He went on, “Not only did Janet DiFiore offer another lenient plea bargain to a violent felon, but she then issued false statements to the media in order to cover up her complicity.”
The victim, Stephanie Vedovino also criticized the plea deal, issuing a letter to the Court denouncing the minimal sentence and Sanchez’ return to
society in five short years after his horrific crimes.
Again, your Honor, these are the words of Stephanie Vedovino. The following documentation is to inform the Courts of New York State, regarding the case of David Sanchez, of the events and occurrences which took place on May 29, 2008.
There was a force in Mr. Sanchez that I had never before experienced. It was a violent nature that terribly frightened me. The experiences that followed were traumatic and violent and very definitely, life-threatening.
I was beaten unconscious several times. It is difficult to remember some specific details. However, for six-and a-half hours, Mr. Sanchez held me as a prisoner in my own vehicle, turning it into a live torture chamber, where he violently attacked me and beat me viciously, threatening my life. I suffered from a fractured left eye orbit, a broken nose, facial distortion, skull and cranial contusions, contusions between my two scapula, contusions to my upper forearms, a slight concussion, a ruptured left eardrum, a blood filled eye, due to many broken blood vessels, lost hair, a
bruised trachea, visible strangulation marks around my neck and burns to my skin on my left arm caused by cigarette burns.
Mr. Sanchez told me in no uncertain terms that he was going to torture me the entire night and that I would be awake to see it all, until he would finally take my life. Mr. Sanchez is an extremely strong and athlete individual, and it was clearly impossible for me to escape from him. My vehicle became bloodbath, with splatters of blood including having spotted the interior roof of the vehicle, and strands of loose hair. My life was spared only through a miraculous intervention of a phone call.
At this point another party heard almost incoherent, terrified sounds. Mount Pleasant Police were then phoned and they searched and located my vehicle on Lilac Place in Hawthorne, New York, about a quarter mile down from my actual job site. The details are fuzzy as I was unconscious part of the time but Mr. Sanchez drove the vehicle himself to that location. Mount Pleasant police officers approached the vehicle.
Mr. Sanchez apparently told the police officer that I was his girlfriend and I had fallen down the stairs. At that point? while waiting for an additional officer, they took him into custody.
Mr. Sanchez then turned and shouted very loudly that he was just going to sit in the back of the cop car and everything was going to be all right.
Mr. Sanchez was then placed in custody in the back of the patrol vehicle. In my condition, I was required to go to headquarters to try to give a verbal deposition. There I finally was transferred to an ambulance and received medical attention at Westchester Medical Center. I was housed in a shelter for battered women. I am in constant and enormous pain both physically and emotionally. I receive therapy twice a week and group therapy once a week and am living in constant fear.
Following these truly terrifying events, I have come to realize that there is no greater fear than the fear of knowing that your own life may at any moment be taken by another so-called human being in your own society. The realization of awaiting the day, or having knowledge that there is a day to come where this individual will be once again in the arms of society, among the innocent, is a day wanted forbidden to come.
The face of justice, would that be the face of an incomplete woman, or is it not to ever see the face of the nemesis again. Does a stranger hold any
significance in this case, to those who have defeated the strangest individual. This is to all who consider society to be as a whole, for it is not a whole with those who cut through it. Please consider the truth of justice. The truth of justice which is one’s justice and freedom in society, we belong to society, not belong running from society. How can one call themselves to be one, when they can torture another one with no remorse, no reason, no cause, and be set free, to prey once again on society.
How can there be such justice for the individual who is capable of causing such harm to another, perhaps taking a life of another. Following the
release of a criminal from their sentenced time of imprisonment, the victim will indefinitely continue to find themselves still serving time.
Your Honor, that being said the People acknowledge, as does the victim, that this is a negotiated plea, that the Court’s promise to the defendant is a sentence of five years state prison and we’d ask your Honor to abide by the negotiations.
The Court Report
By Richard Blassberg
Dan Schorr Refutes DA DiFiore’s Statements
Victim Issued Letter To The Court Denouncing Minimal Sentence
Last Tuesday, September 1st, Dan Schorr, Republican candidate for Westchester District Attorney, stepped up his criticism of the handling of David Sanchez by that Office under Janet DiFiore. Schorr had previously strongly criticized DiFiore on August 17th for having offered Sanchez, who had been charged with Attempted Murder and Assault for savagely beating his ex-girlfriend nearly to death for more than five hours, holding her hostage in her car, a plea-bargained minimal sentence of five years in State prison.
Following Schorr’s remarks on August 17th, the DA’s Office issued a written response claiming that there had been no plea deal, and that the Court had made the sentence determination, and not the District Attorney’s Office.
At his press conference on Tuesday, Mr. Schorr said, “The Court record clearly indicates that the sentencing Mr. Sanchez received was a result of a negotiated plea bargain that was orchestrated by the DA’s Office.”
He went on, “Not only did Janet DiFiore offer another lenient plea bargain to a violent felon, but she then issued false statements to the media in order to cover up her complicity.”
The victim, Stephanie Vedovino also criticized the plea deal, issuing a letter to the Court denouncing the minimal sentence and Sanchez’ return to
society in five short years after his horrific crimes.
Again, your Honor, these are the words of Stephanie Vedovino. The following documentation is to inform the Courts of New York State, regarding the case of David Sanchez, of the events and occurrences which took place on May 29, 2008.
There was a force in Mr. Sanchez that I had never before experienced. It was a violent nature that terribly frightened me. The experiences that followed were traumatic and violent and very definitely, life-threatening.
I was beaten unconscious several times. It is difficult to remember some specific details. However, for six-and a-half hours, Mr. Sanchez held me as a prisoner in my own vehicle, turning it into a live torture chamber, where he violently attacked me and beat me viciously, threatening my life. I suffered from a fractured left eye orbit, a broken nose, facial distortion, skull and cranial contusions, contusions between my two scapula, contusions to my upper forearms, a slight concussion, a ruptured left eardrum, a blood filled eye, due to many broken blood vessels, lost hair, a
bruised trachea, visible strangulation marks around my neck and burns to my skin on my left arm caused by cigarette burns.
Mr. Sanchez told me in no uncertain terms that he was going to torture me the entire night and that I would be awake to see it all, until he would finally take my life. Mr. Sanchez is an extremely strong and athlete individual, and it was clearly impossible for me to escape from him. My vehicle became bloodbath, with splatters of blood including having spotted the interior roof of the vehicle, and strands of loose hair. My life was spared only through a miraculous intervention of a phone call.
At this point another party heard almost incoherent, terrified sounds. Mount Pleasant Police were then phoned and they searched and located my vehicle on Lilac Place in Hawthorne, New York, about a quarter mile down from my actual job site. The details are fuzzy as I was unconscious part of the time but Mr. Sanchez drove the vehicle himself to that location. Mount Pleasant police officers approached the vehicle.
Mr. Sanchez apparently told the police officer that I was his girlfriend and I had fallen down the stairs. At that point? while waiting for an additional officer, they took him into custody.
Mr. Sanchez then turned and shouted very loudly that he was just going to sit in the back of the cop car and everything was going to be all right.
Mr. Sanchez was then placed in custody in the back of the patrol vehicle. In my condition, I was required to go to headquarters to try to give a verbal deposition. There I finally was transferred to an ambulance and received medical attention at Westchester Medical Center. I was housed in a shelter for battered women. I am in constant and enormous pain both physically and emotionally. I receive therapy twice a week and group therapy once a week and am living in constant fear.
Following these truly terrifying events, I have come to realize that there is no greater fear than the fear of knowing that your own life may at any moment be taken by another so-called human being in your own society. The realization of awaiting the day, or having knowledge that there is a day to come where this individual will be once again in the arms of society, among the innocent, is a day wanted forbidden to come.
The face of justice, would that be the face of an incomplete woman, or is it not to ever see the face of the nemesis again. Does a stranger hold any
significance in this case, to those who have defeated the strangest individual. This is to all who consider society to be as a whole, for it is not a whole with those who cut through it. Please consider the truth of justice. The truth of justice which is one’s justice and freedom in society, we belong to society, not belong running from society. How can one call themselves to be one, when they can torture another one with no remorse, no reason, no cause, and be set free, to prey once again on society.
How can there be such justice for the individual who is capable of causing such harm to another, perhaps taking a life of another. Following the
release of a criminal from their sentenced time of imprisonment, the victim will indefinitely continue to find themselves still serving time.
Your Honor, that being said the People acknowledge, as does the victim, that this is a negotiated plea, that the Court’s promise to the defendant is a sentence of five years state prison and we’d ask your Honor to abide by the negotiations.
Sam Zherka/Bennett Gershman/Janet Difiore.
Thursday, September 10, 2009
Guardian Publisher Sam Zherka Responds To Law Professor Bennett Gershman
Bennett Gershman, the Pace Law professor, has taken the easy way out by assailing Sam Zherka, for exercising his Constitutional right by criticizing nearly every politician in Westchester County, including life-long Republican, District Attorney Janet DiFiore. What Bennett Gershman forgot to mention is that Janet DiFiore, and her husband, Dennis Glazer, who was accused of trying to bribe the Right-To-Life Party candidate for District Attorney in 2005, make large contributions to Pace University, and sit on the Board of Directors. In essence, Janet DiFiore is Bennett Gershman’s boss.
In an editorial written in the Journal News, Gershman attempts to spin the truth by painting District Attorney Janet DiFiore as a professional and responsible DA who plays by the rules. The job of the District Attorney is to seek justice, not just a conviction, or DiFiore Justice, but the justice guaranteed by the United States Constitution and the Rule of Law. The unlawful prosecution of Irma Marquez, an innocent home health aide, who was brutally beaten nearly to death is just one of the many civil rights violations Janet DiFiore, the current DA, was involved in.
What does Mr. Gershman, the Pace Con-Law professor, say to the family of Rui Florim, a Portuguese restaurant worker who was brutally tortured by six Yonkers Police officers for over an hour, netting him 72 stitches, a fractured skull, lacerations and bruises all over his body, then prosecuted by Janet DiFiore without ever committing a crime? How would you feel if Rui was your son?
Mr. Gershman, what do you say to Kian Khatibi’s mother, whose innocent son was released this year after suffering in prison for over nine years for a crime he did not commit? Janet DiFiore, as a judge, was one of the culprits involved in stripping this young man of his freedom by denying his 440.10 Motion almost nine years ago. Up until the day of his release, DiFiore fought hard to keep this innocent man in prison.
Janet DiFiore’s very close relationship with Peter Viviano, a man with close ties to the Genovese Crime Family, is alarming and an eye-opener. Her solicitation and acceptance of tens of thousands of dollars in contributions from the Gabelli Fund, which the federal government accused of Fraud, and who was forced to fork over nearly 150 million dollars of public funds, tells us who Janet DiFiore really is.
Janet DiFiore, who was entrusted with the power to affect peoples’ lives, liberty and reputations, is the same DA who, on March 21, 2007 after The Westchester Guardian published an article revealing corruption on her behalf and her husband’s, called Sam Zherka on the phone and threatened Zherka and his family, saying, “How would you like it if someone came a er your family”.
Mr. Gershman needs to know that, when asked whether she threatened Sam Zherka and his family on the phone, she responded “I don’t recall” in court documents her lawyers submitted on her behalf. I would ask Mr. Gershman, “Are these the actions of a servant of the law and a representative of the People who defends the rights and liberties of all citizens with vigor?”
Mr. Gershman asks what Sam Zherka’s motivation is. As the son of Albanian immigrants whose father spent over a decade in Communist concentration camps under torture, and whose mother was beaten every day for over three years for demanding freedom and liberty, Sam Zherka’s motivation is exactly that, the guarantee of freedom and liberty for me, my eight children, my family and all people. I want to inspire people to participate in the political process, to ask more questions, and to demand answers from our public servants; to teach our family, friends and children to scorn injustice and falsehood.
The United States Constitution is not an instrument for the Government to restrain the People, but an instrument for the People to restrain the
Government. Mr. Gershman’s allegations that Sam Zherka has insinuated himself into the DA’s primary race are absolutely true. As an American-born citizen of this great country, it is my Constitutional right and duty to insinuate myself into every elected race especially when one of the candidates is a direct threat to the fabric of freedom and liberty.
As for any investigation by any authority, whether it be Janet DiFiore’s friends at the Manhattan DA’s office or any agency, I openly challenge anyone who can say Sam Zherka has ever committed a crime other than the exercise of Free Speech, which apparently to some in power in Westchester County is a crime.Mr. Gershman, as a professor of law and the Constitution, you should be ashamed of yourself for siding with opportunity over righteousness, politics over dignity, influence over Civil Rights and our Constitutional freedoms. Remember the words of Benjamin Franklin: “They who give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
Sam Zherka, Publisher, The Westchester Guardian
Guardian Publisher Sam Zherka Responds To Law Professor Bennett Gershman
Bennett Gershman, the Pace Law professor, has taken the easy way out by assailing Sam Zherka, for exercising his Constitutional right by criticizing nearly every politician in Westchester County, including life-long Republican, District Attorney Janet DiFiore. What Bennett Gershman forgot to mention is that Janet DiFiore, and her husband, Dennis Glazer, who was accused of trying to bribe the Right-To-Life Party candidate for District Attorney in 2005, make large contributions to Pace University, and sit on the Board of Directors. In essence, Janet DiFiore is Bennett Gershman’s boss.
In an editorial written in the Journal News, Gershman attempts to spin the truth by painting District Attorney Janet DiFiore as a professional and responsible DA who plays by the rules. The job of the District Attorney is to seek justice, not just a conviction, or DiFiore Justice, but the justice guaranteed by the United States Constitution and the Rule of Law. The unlawful prosecution of Irma Marquez, an innocent home health aide, who was brutally beaten nearly to death is just one of the many civil rights violations Janet DiFiore, the current DA, was involved in.
What does Mr. Gershman, the Pace Con-Law professor, say to the family of Rui Florim, a Portuguese restaurant worker who was brutally tortured by six Yonkers Police officers for over an hour, netting him 72 stitches, a fractured skull, lacerations and bruises all over his body, then prosecuted by Janet DiFiore without ever committing a crime? How would you feel if Rui was your son?
Mr. Gershman, what do you say to Kian Khatibi’s mother, whose innocent son was released this year after suffering in prison for over nine years for a crime he did not commit? Janet DiFiore, as a judge, was one of the culprits involved in stripping this young man of his freedom by denying his 440.10 Motion almost nine years ago. Up until the day of his release, DiFiore fought hard to keep this innocent man in prison.
Janet DiFiore’s very close relationship with Peter Viviano, a man with close ties to the Genovese Crime Family, is alarming and an eye-opener. Her solicitation and acceptance of tens of thousands of dollars in contributions from the Gabelli Fund, which the federal government accused of Fraud, and who was forced to fork over nearly 150 million dollars of public funds, tells us who Janet DiFiore really is.
Janet DiFiore, who was entrusted with the power to affect peoples’ lives, liberty and reputations, is the same DA who, on March 21, 2007 after The Westchester Guardian published an article revealing corruption on her behalf and her husband’s, called Sam Zherka on the phone and threatened Zherka and his family, saying, “How would you like it if someone came a er your family”.
Mr. Gershman needs to know that, when asked whether she threatened Sam Zherka and his family on the phone, she responded “I don’t recall” in court documents her lawyers submitted on her behalf. I would ask Mr. Gershman, “Are these the actions of a servant of the law and a representative of the People who defends the rights and liberties of all citizens with vigor?”
Mr. Gershman asks what Sam Zherka’s motivation is. As the son of Albanian immigrants whose father spent over a decade in Communist concentration camps under torture, and whose mother was beaten every day for over three years for demanding freedom and liberty, Sam Zherka’s motivation is exactly that, the guarantee of freedom and liberty for me, my eight children, my family and all people. I want to inspire people to participate in the political process, to ask more questions, and to demand answers from our public servants; to teach our family, friends and children to scorn injustice and falsehood.
The United States Constitution is not an instrument for the Government to restrain the People, but an instrument for the People to restrain the
Government. Mr. Gershman’s allegations that Sam Zherka has insinuated himself into the DA’s primary race are absolutely true. As an American-born citizen of this great country, it is my Constitutional right and duty to insinuate myself into every elected race especially when one of the candidates is a direct threat to the fabric of freedom and liberty.
As for any investigation by any authority, whether it be Janet DiFiore’s friends at the Manhattan DA’s office or any agency, I openly challenge anyone who can say Sam Zherka has ever committed a crime other than the exercise of Free Speech, which apparently to some in power in Westchester County is a crime.Mr. Gershman, as a professor of law and the Constitution, you should be ashamed of yourself for siding with opportunity over righteousness, politics over dignity, influence over Civil Rights and our Constitutional freedoms. Remember the words of Benjamin Franklin: “They who give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety.”
Sam Zherka, Publisher, The Westchester Guardian
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