Banker Busted - Ripping Of TARP.
Former New York Bank President First Charged With Attempting To Defraud TARP
Bank Seized To Protect $500 Million In Deposits.
PREET BHARARA, the United States Attorney for the Southern District of New York, NEIL M. BAROFSKY, the Special Inspector General for the Troubled Asset Relief Program (“SIGTARP”), JAMES T. HAYES, JR., the Special Agent-in-Charge of the New York Office of the Department of Homeland Security Bureau of Immigration and Customs Enforcement (“ICE”), RICHARD H. NEIMAN, the Superintendent of the Banks of New York (“NYSBD”), GEORGE VENIZELOS, the Acting Assistant Director in-Charge of the New York Office of the Federal Bureau of Investigation (“FBI”),and JON T. RYMER, Inspector General of the Federal Deposit Insurance Corporation (“FDIC-OIG”), announced the arrest of CHARLES J. ANTONUCCI, SR., the former President and Chief Executive Officer of the Park Avenue Bank, on allegations of self-dealing, bank bribery, embezzlement of bank funds, and fraud, among others. ANTONUCCI also was alleged to have attempted to fraudulently obtain more than $11 million worth of taxpayer rescue funds from the Troubled Asset Relief Program, or TARP. ANTONUCCI is the first defendant ever charged with attempting to defraud TARP. Additionally, ANTONUCCI was alleged to have used the Park Avenue Bank in a scheme to defraud two pastors of a Florida congregation out of more than $100,000 set aside to build a new church.
ANTONUCCI was arrested in Fishkill, New York. He is expected to appear in Manhattan federal court.
On the evening of Friday, March 12, 2010, the NYSBD seized The Park Avenue Bank and appointed the FDIC as receiver; FDIC has arranged for the sale of The Park Avenue Bank.
According to the Complaint unsealed in Manhattan federal court:
The Park Avenue Bank
The Park Avenue Bank was a federally insured bank headquartered at 460 Park Avenue, New York, New York, with retail branches in Manhattan and Brooklyn. The bank’s clients consisted primarily of small businesses, for whom the bank made loans, extended lines of credit, and maintained depository accounts. As of the end of 2009, the bank had approximately $500 million on deposit, and over $520 million in assets. ANTONUCCI served as President and Chief Executive Officer (“CEO”) of The Park Avenue Bank from June 2004 to October 2009, and also served on its Board of Directors.
The Park Avenue Bank was federally-insured and regulated by the FDIC. Also, as a bank chartered under the laws of New York State, The Park Avenue Bank was regulated by the NYSBD. The bank was required to make certain regular disclosures to these regulators demonstrating that it was financially sound and that it had adequate capital.
FDIC and NYSBD regulations require banks such as The Park Avenue Bank to maintain certain levels of capital, as a percentage of the bank’s total assets. Banks that do not maintain appropriate levels of capital are subject to various restrictions on their activities, and may be required by regulators to raise additional capital. Banks which do not meet minimum capital requirements can be closed by the NYSBD or the FDIC.
The Park Avenue Bank was also an applicant to the Capital Purchase Program of the Troubled Asset Relief Program (“TARP”). The purpose of TARP was to provide funds to stabilize and strengthen the nation’s financial system by increasing the capital base of viable institutions, enabling them to increase the flow of financing to U.S. businesses and consumers. TARP funds were made available to qualifying banks; one of the critical elements of the TARP qualification process was the capital position of the applicant bank.
Self-Dealing, Bank Bribery, And Embezzlement
The Complaint alleges that ANTONUCCI engaged innumerous instances of self-dealing while President and CEO of The Park Avenue Bank, including authorizing extensions of credit and overdrafts to customers with whom he had financial relationships; authorizing extensions of overdraft credit to a customer in exchange for the use of the customer’s private plane; and causing the bank to make improvements on, lease, and pay expenses for properties owned by ANTONUCCI.
The Easy Wealth Line Of Credit
ANTONUCCI used a company he owned, Easy Wealth Group, Ltd. (“Easy Wealth”), to fraudulently obtain funds from _ e Park Avenue Bank. ANTONUCCI could not authorize the extension of credit by The Park Avenue Bank to his own company without violating the bank’s rules against self-dealing.
Accordingly, to mask his interest in Easy Wealth, in early 2006, ANTONUCCI approached an associate and offered to make him president of Easy Wealth (the “Easy Wealth president”), with the understanding that his first order of business would be to apply for a line of credit from _ e Park Avenue Bank.
The Easy Wealth president applied for a line of credit from The Park Avenue Bank in the amount of $300,000. ANTONUCCI personally approved the line of credit and later increased it to$400,000. ANTONUCCI even assisted the Easy Wealth president in preparing the line of credit application documents. The application as submitted contained numerous misrepresentations, including false statements concerning the Easy Wealth president’s personal assets and a fabricated business plan that contained false information about Easy Wealth’s financial condition and earnings. After the Easy Wealth president had drawn down the line of credit, ANTONUCCI approached him and demanded that he pay$70,000 to ANTONUCCI in the form of interest-free loans. ANTONUCCI only repaid $50,000 of the money. Easy Wealth ultimately defaulted on the fraudulently obtained line of credit, causing a loss to The Park Avenue Bank of $400,000.
The Oxygen Overdrafts
ANTONUCCI also approved approximately $8.5 million worth of over- drafts at The Park Avenue Bank to companies (the “Oxygen-related entities”) controlled by a co-conspirator(“CC-1”), who was a close associate of ANTONUCCI’s. Through the Oxygen-related entities, CC-1 brought numerous deposit accounts to The Park Avenue Bank, and submitted, or caused to be submitted applications for numerous loans from the bank.
On more than ten occasions in 2008 and 2009, ANTONUCCI used CC-1’s private plane to fly for free to, among other places, Florida, Panama, Arizona (so that ANTONUCCI could attend the Super Bowl), and Augusta, Georgia (so that ANTONUCCI could attend the Masters golf tournament). All the while, ANTONUCCI approved over $8 million in overdrafts for the Oxygen-related entities’ various accounts at The Park Avenue Bank. On one occasion in 2009, when a check issued by an Oxygen-related entity bounced,CC-1 communicated to ANTONUCCI that he would not be allowed to use CC-1’s private plane.
Showing posts with label Richard Blassberg. Show all posts
Showing posts with label Richard Blassberg. Show all posts
Thursday, March 25, 2010
Thursday, February 25, 2010
Westchester Guardian Article/The Court Report.
Judge Sentences Kerik To Substantially More Than Upper Level Of Federal Guidelines.
Grants Him Three Months Before Surrendering To Prison United States District Court, 300 Quarropas Street, White Plains Judge Stephen C. Robinson, Presiding.
Last Thursday morning, February 18th, former New York City Police Commissioner Bernard Kerik appeared for sentencing before United States District Court Judge Stephen C. Robinson following his plea of guilty to eight separate felony charges. Although not binding on Robinson, Kerik’s attorney, Michael Bachner, had come to an agreement several months ago with federal prosecutors Michael Bosworth, Perry Carbone and Elliot Jacobson, that his guilty plea would subject him to a sentence of between 27 to 33 months should the sentencing judge elect to follow the Federal Sentencing Guidelines.
Robinson opened the session at 10:11am with the statement, “We are here to sentence Mr. Kerik on his guilty pleading to eight felonies.” Addressing Kerik’s attorney, the Judge then said, “Let me first turn to you, Mr. Bachner; have you had a chance to go over the pre-sentence report?”
Bachner replied, “We have,” and then indicated that any prior issues with the report were “deemed to be resolved.”
Robinson then turned to Bosworth, Carbone and Jacobson, who indicated they, too, were satisfied with the report.
The Judge then reviewed all of the five documents that he had read, (1) the pre-sentence probation report, (2) the sentencing memorandum from Defense Attorney Bachner, (3) the sentencing memorandum from the Government, (4) letters and statements from Kerik supporters, and (5) Kerik’s plea allocution.
Robinson then said, “Let’s move forward,” signalling Attorney Bachner’s opening remarks. Bachner declared, “Bernard Bailey Kerik is before
you with the deepest humility and remorse, Your Honor. He knows by his conduct that he’s let people down.” Bachner emphasized the need for the Court to impose a sentence “sufficient, but not greater than necessary, to achieve the Court’s goals.”
Bachner took the opportunity to remind Robinson that his client’s plea understanding with the Government involved a sentence that would be between 27 and 33 months. He then went into an account of how Kerik, as a detective with the NYPD, had saved the life of a fellow detective, Hector Santiago, at the scene of a “drug buy gone bad.” Bachner referenced “a Talmudic” that “One who saves a life, saves the World.” He then declared, “Your Honor, Bernard Kerik has rescued the world many times over.”
Robinson then broke in with, “I’m going to interrupt your statement. At the same time we have a good cop, the good commissioner, we have the man who was violating the law. Not a bad day, or bad week, or bad year, but all the time.” The Judge repeats, “At the time he is doing good things, he is also violating the law.”
The Judge went on, “He had things on his website that trouble me no end; making it appear he was innocent, and prosecutors were not acting in good faith. We had Mr. Kerik violating orders of this Court, willing to violate the law and obstructing the investigation.”
Bachner broke in with, “Mr. Kerik is a complicated person. He would acknowledge he was inconsistent and wrong. When you’re so high on the pedestal, your fall is very painful.”
Robinson came back with, “At one point I told Mr. Kerik, ‘as you rise through the ranks of public service, you now receive but’...” The Judge was making the point that high office was not necessarily accompanied by high financial reward. He declared, “My law clerks will leave next year and make more money than I do. I can’t afford to send my daughter to the college she goes to.”
He then asked rhetorically, “What is the message that is sent by this sentence today?”
Bachner, as if to calm Robinson down, countered with a remark about general deterrence, and then added, “Twenty-seven months is no slap on the wrist.”
But Robinson was not to be stifled. He came right back with, “I am very seriously thinking about going above the Guidelines.”
Bachner then reminded him of the “27 to 33 month agreement.”
Again, the Judge came right back, “That doesn’t bind me.”
Bachner, going for broke, then said, “Heroism and public service must be taken into account.” Then shifting gears a bit, he declared, “Mr. Kerik is an extraordinary good person in so many ways. We have an obligation to remember the good someone has done. The good outweighs the bad he has done.”
Then, assuming a sentence closer to 27 months for his 54-year-old client, Bachner said, “At age 56 there will be many people who admire him, but many more who don’t. He is remorseful and begs the Court to allow him to resume his life. His supporters are heartbroken by his conduct.”
Now, Robinson began to reveal his own fears, declaring, “People will look at what happens here and it will either resonate with them or it won’t.”
Bachner, who earlier spoke of the sentencing, some years earlier, of a former Connecticut governor, John Roland, now made the mistake of invoking that case again. This time Judge Robinson informed him, offering, “I was the United States Attorney who started that investigation.” (Connecticut Governor John Roland had received some $250,000-worth of renovation to his summer home from a developer doing business with the state.)
All told, Kerik’s attorney argued in his client’s behalf for some 40 minutes.
The Judge now offered Bernard Kerik the opportunity to speak in his own behalf. Kerik rose to his feet and told the Court, “I make no excuses, and take full responsibility for the mistakes I’ve made. I ask only that you allow me to return to my wife and our two little girls as soon as possible.”
Assistant United States Attorney Bosworth now had his say, declaring, “However committed he was to enforcing the law when it came to others, he violated the law when it suited his purposes though.” He then remarked, “The Defendant alone is the architect of his public fall from grace. He committed crime after crime in service of himself over a period of a decade.”
And, now Judge Robinson chimed in with, “There are multiple felonies that Mr. Kerik has pled guilty to that do not influence the Guidelines.”
It was now 11:30am, an hour and twenty minutes into the sentencing, and Robinson was seriously agonizing, “As I’ve already mentioned, for me, Mr. Kerik is a complicated character. The Guidelines don’t take into account the almost operatic properties of this case. We don’t just have anyone here; we have the Police Commissioner of New York City continuing to commit crimes. I have been particularly troubled by the way Mr. Kerik, and people on his behalf, continue to behave.”
Robinson continued, asking, “What is the appropriate consequence for his misconduct?”
Drawing closer to a pronouncement of sentence, but still agonizing, Robinson now opined, “That Mr. Kerik would use the 9/11 event for self-aggrandisement is a dark place in the soul for me.”
He then went on to sentence Kerik to 48 months; 15 months more than the high end of the Federal Sentencing Guidelines, plus three years of probation. He was, however, persuaded, after much discussion, to allow Kerik to turn himself in to the designated federal prison on May 17, rather
than remanding him immediately to jail.
Analysis:
The two-hour-long sentencing of Bernard Kerik was ‘vintage’ Judge Robinson, complete with much agonizing and thoughtful consideration to all aspects and individuals sure to be impacted by his decision.
In imposing a 48-month incarceration, 15 months longer than suggested by the Federal Sentencing Guidelines, Robinson was not ignoring those Guidelines, but, rather, rejecting them because of his appropriate concerns for the message he would convey both to the Defendant and to the world of observers.
However, having so lengthened Mr. Kerik’s term of incarceration, the good Judge remained reasonable and fair, allowing him to surrender to prison authorities in 90 days despite the Government’s arguments to immediately remand him.
Grants Him Three Months Before Surrendering To Prison United States District Court, 300 Quarropas Street, White Plains Judge Stephen C. Robinson, Presiding.
Last Thursday morning, February 18th, former New York City Police Commissioner Bernard Kerik appeared for sentencing before United States District Court Judge Stephen C. Robinson following his plea of guilty to eight separate felony charges. Although not binding on Robinson, Kerik’s attorney, Michael Bachner, had come to an agreement several months ago with federal prosecutors Michael Bosworth, Perry Carbone and Elliot Jacobson, that his guilty plea would subject him to a sentence of between 27 to 33 months should the sentencing judge elect to follow the Federal Sentencing Guidelines.
Robinson opened the session at 10:11am with the statement, “We are here to sentence Mr. Kerik on his guilty pleading to eight felonies.” Addressing Kerik’s attorney, the Judge then said, “Let me first turn to you, Mr. Bachner; have you had a chance to go over the pre-sentence report?”
Bachner replied, “We have,” and then indicated that any prior issues with the report were “deemed to be resolved.”
Robinson then turned to Bosworth, Carbone and Jacobson, who indicated they, too, were satisfied with the report.
The Judge then reviewed all of the five documents that he had read, (1) the pre-sentence probation report, (2) the sentencing memorandum from Defense Attorney Bachner, (3) the sentencing memorandum from the Government, (4) letters and statements from Kerik supporters, and (5) Kerik’s plea allocution.
Robinson then said, “Let’s move forward,” signalling Attorney Bachner’s opening remarks. Bachner declared, “Bernard Bailey Kerik is before
you with the deepest humility and remorse, Your Honor. He knows by his conduct that he’s let people down.” Bachner emphasized the need for the Court to impose a sentence “sufficient, but not greater than necessary, to achieve the Court’s goals.”
Bachner took the opportunity to remind Robinson that his client’s plea understanding with the Government involved a sentence that would be between 27 and 33 months. He then went into an account of how Kerik, as a detective with the NYPD, had saved the life of a fellow detective, Hector Santiago, at the scene of a “drug buy gone bad.” Bachner referenced “a Talmudic” that “One who saves a life, saves the World.” He then declared, “Your Honor, Bernard Kerik has rescued the world many times over.”
Robinson then broke in with, “I’m going to interrupt your statement. At the same time we have a good cop, the good commissioner, we have the man who was violating the law. Not a bad day, or bad week, or bad year, but all the time.” The Judge repeats, “At the time he is doing good things, he is also violating the law.”
The Judge went on, “He had things on his website that trouble me no end; making it appear he was innocent, and prosecutors were not acting in good faith. We had Mr. Kerik violating orders of this Court, willing to violate the law and obstructing the investigation.”
Bachner broke in with, “Mr. Kerik is a complicated person. He would acknowledge he was inconsistent and wrong. When you’re so high on the pedestal, your fall is very painful.”
Robinson came back with, “At one point I told Mr. Kerik, ‘as you rise through the ranks of public service, you now receive but’...” The Judge was making the point that high office was not necessarily accompanied by high financial reward. He declared, “My law clerks will leave next year and make more money than I do. I can’t afford to send my daughter to the college she goes to.”
He then asked rhetorically, “What is the message that is sent by this sentence today?”
Bachner, as if to calm Robinson down, countered with a remark about general deterrence, and then added, “Twenty-seven months is no slap on the wrist.”
But Robinson was not to be stifled. He came right back with, “I am very seriously thinking about going above the Guidelines.”
Bachner then reminded him of the “27 to 33 month agreement.”
Again, the Judge came right back, “That doesn’t bind me.”
Bachner, going for broke, then said, “Heroism and public service must be taken into account.” Then shifting gears a bit, he declared, “Mr. Kerik is an extraordinary good person in so many ways. We have an obligation to remember the good someone has done. The good outweighs the bad he has done.”
Then, assuming a sentence closer to 27 months for his 54-year-old client, Bachner said, “At age 56 there will be many people who admire him, but many more who don’t. He is remorseful and begs the Court to allow him to resume his life. His supporters are heartbroken by his conduct.”
Now, Robinson began to reveal his own fears, declaring, “People will look at what happens here and it will either resonate with them or it won’t.”
Bachner, who earlier spoke of the sentencing, some years earlier, of a former Connecticut governor, John Roland, now made the mistake of invoking that case again. This time Judge Robinson informed him, offering, “I was the United States Attorney who started that investigation.” (Connecticut Governor John Roland had received some $250,000-worth of renovation to his summer home from a developer doing business with the state.)
All told, Kerik’s attorney argued in his client’s behalf for some 40 minutes.
The Judge now offered Bernard Kerik the opportunity to speak in his own behalf. Kerik rose to his feet and told the Court, “I make no excuses, and take full responsibility for the mistakes I’ve made. I ask only that you allow me to return to my wife and our two little girls as soon as possible.”
Assistant United States Attorney Bosworth now had his say, declaring, “However committed he was to enforcing the law when it came to others, he violated the law when it suited his purposes though.” He then remarked, “The Defendant alone is the architect of his public fall from grace. He committed crime after crime in service of himself over a period of a decade.”
And, now Judge Robinson chimed in with, “There are multiple felonies that Mr. Kerik has pled guilty to that do not influence the Guidelines.”
It was now 11:30am, an hour and twenty minutes into the sentencing, and Robinson was seriously agonizing, “As I’ve already mentioned, for me, Mr. Kerik is a complicated character. The Guidelines don’t take into account the almost operatic properties of this case. We don’t just have anyone here; we have the Police Commissioner of New York City continuing to commit crimes. I have been particularly troubled by the way Mr. Kerik, and people on his behalf, continue to behave.”
Robinson continued, asking, “What is the appropriate consequence for his misconduct?”
Drawing closer to a pronouncement of sentence, but still agonizing, Robinson now opined, “That Mr. Kerik would use the 9/11 event for self-aggrandisement is a dark place in the soul for me.”
He then went on to sentence Kerik to 48 months; 15 months more than the high end of the Federal Sentencing Guidelines, plus three years of probation. He was, however, persuaded, after much discussion, to allow Kerik to turn himself in to the designated federal prison on May 17, rather
than remanding him immediately to jail.
Analysis:
The two-hour-long sentencing of Bernard Kerik was ‘vintage’ Judge Robinson, complete with much agonizing and thoughtful consideration to all aspects and individuals sure to be impacted by his decision.
In imposing a 48-month incarceration, 15 months longer than suggested by the Federal Sentencing Guidelines, Robinson was not ignoring those Guidelines, but, rather, rejecting them because of his appropriate concerns for the message he would convey both to the Defendant and to the world of observers.
However, having so lengthened Mr. Kerik’s term of incarceration, the good Judge remained reasonable and fair, allowing him to surrender to prison authorities in 90 days despite the Government’s arguments to immediately remand him.
Thursday, January 28, 2010
Westchester Guardian/Rob Astorino/Richard Blassberg.
Message For Rob Astorino: Wake Up And Smell The Coffee!
Implications Of Massachusetts Upset For Westchester.
Last Tuesday night Scott Brown, winner of the special race for United States Senator from the State of Massachusetts declared, at his celebration in Boston, “Tonight the independent majority delivered a great victory for the people.” Brown, a Republican State Senator for some five years, defeated Democrat Martha Coakley, Massachusetts Attorney General, for the seat held by the late Edward M. Kennedy for some 47 years, a remark-able upset, indeed.
There is no question that Mr. Brown’s victory will have an immediate negative impact upon the Obama Administration’s effort to pass major healthcare reform legislation. However, in a much broader sense, the election of a Republican to Ted Kennedy’s seat in perhaps the bluest, most liberal bastion in all of America, has far broader implications than the mere success or failure of Mr. Obama’s healthcare initiative.
The single most important implication lay in the very words Brown uttered in declaring victory. He did not exalt his own Republican Party. He acknowledged, and gave heartfelt thanks, to “the independent majority,” and not the Republican Party that nominated him and supported his brilliant campaign. He recognized, as our own newly-minted Republican County Executive should truly recognize, that without those non-aligned and independent voters, he would not have succeeded.
Despite the fact that Democrats outnumber Republicans in the Bay State three to one, clearly, it was not a matter of Party allegiance, Democrats vs. Republicans, that would determine the outcome. Instead, it was really a cobbling together of those independent voters who understood that it was an election about issues, healthcare, the wars in Iraq and Afghanistan, and the sluggish economy.
Brown rightly sensed that voters did not feel especially understood or responded to by either the Democratic or Republican Parties, and that their mood was one of discontentment and anger with the status quo. Driving throughout the state to his numerous campaign rallies and speeches in a pickup truck, projected the image of a candidate who was one of them; one who would listen to them and bring about change they could live with and afford.
In plain language, the people of this country have grown tired of the “same ol’, same ol’”, a two-party system where the players, with few exceptions, are interchangeable, and neither side seems to care enough to bring about meaningful and lasting changes. They hunger for real solutions to the basic problems faced daily by working families in our sluggish economy as mortgage foreclosure continues to erode our neighborhoods and displace unemployed and underemployed constituent taxpayers.
Not since Watergate has the public perception of politicians and the two major parties been so poor. Never before have families been so heavily taxed while, at the same time, working longer hours to bring home less.
In Washington President Obama, who rode to victory just one year ago, promising “fundamental changes in the way government would be conducting business,” now finds himself being accused of “illusory tactics”, yet engaging in concessions and giveaways that continue to drain and depress our economy.
Here at home in Westchester, we do not particularly enjoy having the distinction of paying the highest property taxes in the nation, coupled with the falling market value of our homes. That one-two punch has tended to make us more uncomfortable with, and intolerant of, arrogant, self-serving politicians.
Those who participate in the electoral process have become increasingly unwilling to identify with either the Democrats or Republicans, preferring, instead, to be registered with the Independence Party, or as an independent, non-aligned voter. In fact, in many areas of the country, non-aligned and Independence Party registrations combined comprise more than one-third of voters in any given election; a fact that should now dramatically alter the rules of engagement in most future races.
No longer should the Independence Party of Westchester be content to cross-endorse either the Republican or Democratic Party choice, in any given contest, thus ensuring that particular candidate’s probable election. Rather, the time has come when the Independence Party should be actively issuing platforms and positions with respect to countywide, statewide and national issues.
At the same time, the Independence Party needs to actively interview, and recruit, compatible worthy candidates for all positions available, simultaneously aggressively registering and educating new Party members, particularly young adults.
It is no longer a productive strategy to merely crossendorse candidates who have been pre-selected by either the Democratic or Republican machine. That fact has been forcefully driven home by the actions of the Astorino Administration over the past 10 weeks since election.
Despite initial acknowledgement of the crucial role played by the Independence Party and nonaligned voters in Rob Astorino’s victory over Andy Spano, a victory predicted and encouraged by information published by The Guardian alone against all other local news media in Westchester, the new Administration has virtually avoided any and every opportunity to include those without whose active assistance their success would not have occurred.
It has rapidly become apparent that, with the exception of the switch at the very top, and those closest to him, the Astorino Administration is quite happy to leave much of the corrupt Spano organization in place.
Change? What change? We don’t see much change at all.
Implications Of Massachusetts Upset For Westchester.
Last Tuesday night Scott Brown, winner of the special race for United States Senator from the State of Massachusetts declared, at his celebration in Boston, “Tonight the independent majority delivered a great victory for the people.” Brown, a Republican State Senator for some five years, defeated Democrat Martha Coakley, Massachusetts Attorney General, for the seat held by the late Edward M. Kennedy for some 47 years, a remark-able upset, indeed.
There is no question that Mr. Brown’s victory will have an immediate negative impact upon the Obama Administration’s effort to pass major healthcare reform legislation. However, in a much broader sense, the election of a Republican to Ted Kennedy’s seat in perhaps the bluest, most liberal bastion in all of America, has far broader implications than the mere success or failure of Mr. Obama’s healthcare initiative.
The single most important implication lay in the very words Brown uttered in declaring victory. He did not exalt his own Republican Party. He acknowledged, and gave heartfelt thanks, to “the independent majority,” and not the Republican Party that nominated him and supported his brilliant campaign. He recognized, as our own newly-minted Republican County Executive should truly recognize, that without those non-aligned and independent voters, he would not have succeeded.
Despite the fact that Democrats outnumber Republicans in the Bay State three to one, clearly, it was not a matter of Party allegiance, Democrats vs. Republicans, that would determine the outcome. Instead, it was really a cobbling together of those independent voters who understood that it was an election about issues, healthcare, the wars in Iraq and Afghanistan, and the sluggish economy.
Brown rightly sensed that voters did not feel especially understood or responded to by either the Democratic or Republican Parties, and that their mood was one of discontentment and anger with the status quo. Driving throughout the state to his numerous campaign rallies and speeches in a pickup truck, projected the image of a candidate who was one of them; one who would listen to them and bring about change they could live with and afford.
In plain language, the people of this country have grown tired of the “same ol’, same ol’”, a two-party system where the players, with few exceptions, are interchangeable, and neither side seems to care enough to bring about meaningful and lasting changes. They hunger for real solutions to the basic problems faced daily by working families in our sluggish economy as mortgage foreclosure continues to erode our neighborhoods and displace unemployed and underemployed constituent taxpayers.
Not since Watergate has the public perception of politicians and the two major parties been so poor. Never before have families been so heavily taxed while, at the same time, working longer hours to bring home less.
In Washington President Obama, who rode to victory just one year ago, promising “fundamental changes in the way government would be conducting business,” now finds himself being accused of “illusory tactics”, yet engaging in concessions and giveaways that continue to drain and depress our economy.
Here at home in Westchester, we do not particularly enjoy having the distinction of paying the highest property taxes in the nation, coupled with the falling market value of our homes. That one-two punch has tended to make us more uncomfortable with, and intolerant of, arrogant, self-serving politicians.
Those who participate in the electoral process have become increasingly unwilling to identify with either the Democrats or Republicans, preferring, instead, to be registered with the Independence Party, or as an independent, non-aligned voter. In fact, in many areas of the country, non-aligned and Independence Party registrations combined comprise more than one-third of voters in any given election; a fact that should now dramatically alter the rules of engagement in most future races.
No longer should the Independence Party of Westchester be content to cross-endorse either the Republican or Democratic Party choice, in any given contest, thus ensuring that particular candidate’s probable election. Rather, the time has come when the Independence Party should be actively issuing platforms and positions with respect to countywide, statewide and national issues.
At the same time, the Independence Party needs to actively interview, and recruit, compatible worthy candidates for all positions available, simultaneously aggressively registering and educating new Party members, particularly young adults.
It is no longer a productive strategy to merely crossendorse candidates who have been pre-selected by either the Democratic or Republican machine. That fact has been forcefully driven home by the actions of the Astorino Administration over the past 10 weeks since election.
Despite initial acknowledgement of the crucial role played by the Independence Party and nonaligned voters in Rob Astorino’s victory over Andy Spano, a victory predicted and encouraged by information published by The Guardian alone against all other local news media in Westchester, the new Administration has virtually avoided any and every opportunity to include those without whose active assistance their success would not have occurred.
It has rapidly become apparent that, with the exception of the switch at the very top, and those closest to him, the Astorino Administration is quite happy to leave much of the corrupt Spano organization in place.
Change? What change? We don’t see much change at all.
Thursday, December 10, 2009
Westchester Guardian Article/The Advocate/Richard Blassberg/Andy Spano.
Republican County Legislator George Oros Declares Spano’s Last-Minute Contracts “A Kick In The Teeth To County Taxpayers”
Last Monday afternoon, retiring Republican County Legislator, Minority Leader George Oros, held a press conference at his law office in White Plains to blast outgoing County Executive Andy Spano for what Oros called “A 2010 Budget filled with land mines and rewards for Spano’s campaign contributors, especially law firms.” He told reporters, “Republicans are calling for a moratorium.”
Oros commented paranthetically, “I’d love to see the budget that would be there if Spano had won.” He went on, “We must bring State, County and Municipal people together. We can achieve real economies of scale. People just can’t take it anymore.”
Oros stressed that, for years, he had called for “reform of the Board of Acquisition and Contract,” but that, on November 24, “the A&C Agenda included a handful of multimillion dollar, multi-year contracts.”
The so-called “11th Hour Contracts” include:
• $2.7 million to various law firms, all of which have been big contributors to Spano’s campaigns to perform of counsel legal services;
• $12 million for Westhab to operate homeless shelters;
• $4 million for security systems integration at the County Jail;
• $900,000 for a fence at Rye Playland.
The Board of Acquisition and Contract consists of three members, the County Executive, and his appointed Commissioner of Public Works, as well as the elected Chairman of the Board of Legislators. In effect, the County Executive, through his appointee, retains the power to pass any contract or long-term lease by his control of two out of three votes.
Oros told reporters, “The Spano Administration wants to tie Mr. Astorino’s hands and make it much harder to achieve the goals the overwhelming majority of voters chose him to accomplish.” He went further, stating, “This is not the way a county executive who has served 12 years should go out the door.”
Oros went on, “Voters spoke loud and clear in the last election that they were tired of business-as-usual in Westchester County government. It’s time for Mr. Spano to step aside and let a breath of fresh air come in.”
Asked if he was, in fact, still pushing for A&C reforms, Oros said he would “like to see the County Budget submitted before Election Day, as well as the use of zero-based budgeting.”
Under zero-based budgeting, every proposed expense, every purchase, every position in County Government, is re-evaluated in terms of developments since the prior budget to determine whether the position, the purchase, etc., is still justified and necessary going forward or, if, for whatever reason, that expense may need to be increased or possibly cut back, or eliminated altogether. Under such budgeting practices, the tendency to fund unneeded positions and expenses is greatly reduced, and duplication of services and acquisition of unnecessary materials and leased space are more easily identified and eliminated.
Oros went on to say, “Spano is frustrating the will and the sentiment of the taxpayers with $30-40 million of 11th hour expenses. We should put those items on hold and give the new administration a change. He owes it to the voters, but he really doesn’t care what they think.”
As if to confirm George Oros’ assertions, on Wednesday, just 24 hours after the press conference, the Guardian received a “Letter to the Editor” from a County Government employee (see page four, “Spanocrat Going to County Board of Elections.”)
We were gratified that the reader had adopted the title ‘Spanocrat’, coined by The Advocate several years ago to describe those party insiders whose attachment for financial selfenrichment, to Andy Spano and Company was much more compelling than their commitment to Democratic principles and practices.
Last Monday afternoon, retiring Republican County Legislator, Minority Leader George Oros, held a press conference at his law office in White Plains to blast outgoing County Executive Andy Spano for what Oros called “A 2010 Budget filled with land mines and rewards for Spano’s campaign contributors, especially law firms.” He told reporters, “Republicans are calling for a moratorium.”
Oros commented paranthetically, “I’d love to see the budget that would be there if Spano had won.” He went on, “We must bring State, County and Municipal people together. We can achieve real economies of scale. People just can’t take it anymore.”
Oros stressed that, for years, he had called for “reform of the Board of Acquisition and Contract,” but that, on November 24, “the A&C Agenda included a handful of multimillion dollar, multi-year contracts.”
The so-called “11th Hour Contracts” include:
• $2.7 million to various law firms, all of which have been big contributors to Spano’s campaigns to perform of counsel legal services;
• $12 million for Westhab to operate homeless shelters;
• $4 million for security systems integration at the County Jail;
• $900,000 for a fence at Rye Playland.
The Board of Acquisition and Contract consists of three members, the County Executive, and his appointed Commissioner of Public Works, as well as the elected Chairman of the Board of Legislators. In effect, the County Executive, through his appointee, retains the power to pass any contract or long-term lease by his control of two out of three votes.
Oros told reporters, “The Spano Administration wants to tie Mr. Astorino’s hands and make it much harder to achieve the goals the overwhelming majority of voters chose him to accomplish.” He went further, stating, “This is not the way a county executive who has served 12 years should go out the door.”
Oros went on, “Voters spoke loud and clear in the last election that they were tired of business-as-usual in Westchester County government. It’s time for Mr. Spano to step aside and let a breath of fresh air come in.”
Asked if he was, in fact, still pushing for A&C reforms, Oros said he would “like to see the County Budget submitted before Election Day, as well as the use of zero-based budgeting.”
Under zero-based budgeting, every proposed expense, every purchase, every position in County Government, is re-evaluated in terms of developments since the prior budget to determine whether the position, the purchase, etc., is still justified and necessary going forward or, if, for whatever reason, that expense may need to be increased or possibly cut back, or eliminated altogether. Under such budgeting practices, the tendency to fund unneeded positions and expenses is greatly reduced, and duplication of services and acquisition of unnecessary materials and leased space are more easily identified and eliminated.
Oros went on to say, “Spano is frustrating the will and the sentiment of the taxpayers with $30-40 million of 11th hour expenses. We should put those items on hold and give the new administration a change. He owes it to the voters, but he really doesn’t care what they think.”
As if to confirm George Oros’ assertions, on Wednesday, just 24 hours after the press conference, the Guardian received a “Letter to the Editor” from a County Government employee (see page four, “Spanocrat Going to County Board of Elections.”)
We were gratified that the reader had adopted the title ‘Spanocrat’, coined by The Advocate several years ago to describe those party insiders whose attachment for financial selfenrichment, to Andy Spano and Company was much more compelling than their commitment to Democratic principles and practices.
Thursday, September 17, 2009
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.
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/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.
Thursday, September 3, 2009
Westchester Guardian/The Advocate.
Thursday, September 3, 2009
The Advocate
Richard Blassberg
Andrew Spano And David Paterson Each
Pull The Race Card To Cover Their Blunders
The Advocate
Richard Blassberg
Andrew Spano And David Paterson Each
Pull The Race Card To Cover Their Blunders
About a week and a half ago, Westchester County Executive Andrew Spano and Governor David Paterson, each very low in public opinion polls, each having been cited for major blunders, each individually pulled the race card in their desperation to bolster their position.
David Paterson, during an interview on a talk radio show, told Daily News columnist Errol Louis, “We’re not in the post-racial period. My feeling is it’s being orchestrated, it’s a game, and people who pay attention know that.” He went on to say, “The next victim on the list, and you see it
coming, is President Barack Obama, who did nothing more than try to reform a healthcare system only because he’s trying to make change.”
Paterson was attempting to explain away his poor performance and numerous blunders since assuming the Governor’s Office, as nothing more than a “media-driven racial attack.” However, his remarks were quickly rebuked, as reported by New York Post Albany Bureau Chief Fred U. Dicker, who exclusively informed his readers, “President Obama’s aides were so furious that Governor Paterson dragged him into a rant about racism
that they sent a message sharply criticizing the Governor’s comments just hours a er he made them.” Columns in the New York Times and Daily News were very critical of the Governor’s comments for several days thereafter.
Andy Spano, on the other hand, already smarting from exposure of his Administration’s violations under the False Claims Act, and more than $13 million in fines and legal expenses, in a rare appearance before the County Legislature, and then on News12’s Newsmakers program, repeatedly pulled the race card in a desperate attempt to draw attention away from the $65 million debacle his misuse of federal funds and his misrepresentations to HUD since 2000 will now cost taxpayers.
There are too many unanswered questions, one of the most obvious of which is, “Where was the $52 million spent that Spano repeatedly assured the federal government was being used for the creation of affordable housing as required under the block grants from which Spano accepted the money?”
Westchester taxpayers have a right to know which developers and which brokers and property owners, tightly connected to Spano and his clique, were beneficiaries of his misappropriation. Never mind Andy’s attempt to distract taxpayers and voters with references to racism, and the notion that, as he told the County Legislators with his voice cracking, “It’s all about African-Americans and Hispanics. If you vote ‘no’, that must weigh heavily. We would become, as the City of Yonkers became the most racist city in the United States, the most racist county in the United States.”
In the course of his self-serving interview with News12’s Brian Conybeare, Spano strained to put a favorable spin where none was possible. He began one sentence, “We weren’t accused... [quickly inserting] convicted of anything.” Of course, he and his Administration stand accused, and plainly culpable of misappropriating, and misrepresenting the use of some $52 million; and, having spent another $5 million in legal fees, theirs and their non-profit opponent’s, over the last three years, they would now have County Taxpayers bail them out.
Spano had the chutzpah to tell Conybeare, “There’s minimal ongoing impact on County taxes.” Of course, there would seem to be “minimal impact” from the standpoint of a County Executive who has pushed the County’s budget up to practically $2 billion and who gives taxpayers’ money away like candy to his friends and political contributors. Making up for the $65 million called for in the settlement he’s trying to ram
through will cost each and every household in Westchester at least $200.
Andy Spano would like the People of Westchester to forget about the deal he, and Larry Schwartz, pushed through the County Legislature last
year to buy a “white elephant” of an old and moldy building at 450 Saw Mill River Road, Ardsley; a building that one of his big campaign contributors couldn’t unload on anybody else; a building that will likely cost $20 million between purchase, repair, and renovation before any County agency ever occupies it.
The simple truth is that the federal government has learned that Andy Spano & Company cannot be trusted to do the right thing with their money, much less truthfully report it; and, Westchester taxpayers, the nation’s highest taxed, have learned the same. As for David Paterson’s and Andrew Spano’s individual pathetic use of the race card to distract voters’ attention from their blunders and low poll standings, readers are reminded that the chief advisor to each of them is Larry Schwartz, a political schemer and dealer whose deck is filled with nothing but jokers and marked cards.
Confirming our beliefs, with respect to Larry Schwartz’ role, the New York Post, in its Monday, Aug. 24 edition, reported, on page 13, “Obama aide Patrick Gaspard called Paterson’s First Deputy Secretary, Larry Schwartz, to air the President’s frustrations over being dragged into Paterson’s rant about racism.”
Westchester Guardian/The Court Report.
Thursday, September 3, 2009
The Court Report
By Richard Blassberg
Decision By Federal District Judge Kenneth M. Karas
Illustrates Need To Enact Federal Legislation To Curtail
Prosecutorial Misconduct And Wrongful Conviction
Most readers of The Guardian, indeed, most news-conscious Westchester residents, are by now quite familiar with the outrageous and unlawful
treatment of a young, babyfaced, 16-year-old Peekskill schoolboy, Jeffrey Deskovic, received at the hands of the Peekskill Police, the Westchester District Attorney’s Office, and Medical Examiner’s Office, upon the brutal rape and murder of one of his high school classmates, 15-year-old Angela Correa.
Deskovic, who was maliciously and cynically robbed of 17 years of his youth and young adulthood by mindless, wretched individuals masquerading
as public servants, can never be adequately compensated for all that has been taken both from him and from his loved ones, is nevertheless seeking some nancial award which may help ease the pain, and the developmental and experiential gaps in his life with which he will likely continue to struggle so long as he lives.
Toward that end, since emerging from prison, he has been engaged in a civil rights lawsuit, principally a Section 1983 suit against the agencies and individuals whose deliberate and criminal conduct ruthlessly stole so much of his youth and promise. Amazingly, this young man who emerged from State Prison three years ago, did so without a trace of bitterness or anger, but rather an abiding commitment to working hard to prevent others from undergoing the nightmare of prosecutorial misconduct and wrongful conviction. He has been a tireless advocate, writing and speaking out for legislation to prevent the kind of tyrannical and heinous conduct by state actors under the Color of Law that can best be described as “man’s in-
humanity to man.”
The subject of this Court Report is the action taken by Judge Kenneth M. Karas with respect to a Motion to Dismiss the charges against former
Westchester Assistant District Attorney George Bolen, the chief prosecutor of Jeffrey Deskovic some 20 years ago, for a rape and murder he had
every reason to realize the youngster was totally innocent of.
One would hope that the penultimate nature of the horrific assault on justice that was perpetrated under the supervision and self-serving evil of ADA George Bolen might inspire all engaged in its discovery and reconciliation to carefully consider the global implications of their judgments
and actions particularly with respect to those who have gone to their execution under similar, unthinkable circumstances, and, most importantly, those who may still.
The rape and murder of Angela Correa, a girl he hardly knew, except by sight, on November 17, 1989, would prove to be a tragedy of defining
significance for a 16-year-old school-mate who would quickly become the target of a malicious and mindless campaign to produce a believable “monster” to satisfy the calls for a suspect, anyone who, once taken into custody, would calm the fears of a city consisting of fewer than 7,000 households.
Judge Karas would seem early on to be emphasizing the unlawful aspects of the Peekskill Police Department’s conduct with respect to Deskovic in the rst seven pages of his 35-page decision. Within three weeks of the crime, Detectives Tumolo, Levine, and McIntyre, without one concrete piece of evidence, were convinced that Deskovic was a “person of interest.”
Officer David Levine would, as noted by Karas, despite prior notification of the attachment of counsel, coerce the naive youngster into waiving
his right to counsel, whereupon he and his fellow Peekskill Police Officers surely, under the supervision and awareness of ADA Bolen “interrogated Deskovic on numerous other occasions.”
Judge Karas would seem to go out of his way not only to point out the unlawful activities of the Peekskill Police in their dealings with Deskovic,
but signi cantly emphasized that those same police, with respect to Deskovic’s knowing of details, falsely “represented in police reports, in conversations with prosecutors before trial, at pre-trial hearings, and a trial that these public facts were actually the product of Deskovic’s independent knowledge about the crime.”
When making detailed reference to the horrific January 25th, 1990 scenario under which Jeffrey Deskovic was unlawfully kidnapped by Tumolo,
McIntyre, and Levine while on his way to school, and brought to a virtual torture chamber in Brewster to be interrogated for some eight hours; most of that time attached to a polygraph machine, interestingly Karas initially makes no reference to the polygraph nor then-Putnam County Deputy Sheri Daniel Stephens.
Judge Karas does not fail to note Detective McIntyre’s exclusions from his police report, of any mention of threats of violence against Deskovic,
and the promise that he would “go home and receive mental health treatment” if he simply confessed, as well as Deputy Stephens’ reported false
representation that facts conveyed by Deskovic originated with him rather than the Peekskill Police Officers.”
It should be noted that the whole polygraph confession incident took place in Brewster, some 20 miles away from Peekskill, in a place totally unfamiliar to Deskovic.
Karas takes the opportunity to point out, “Plaintiffs also specifically allege that prosecutors were unaware of the bulk of the Peekskill Police
Departments’ officers’ misconduct and of other potentially exculpatory information.” One would be naive to believe that George Bolen could be, or would be, kept in the dark as to the details of how the false confession was extracted from 16-year-old Jeffrey.
There can be no question that Bolen was the engineer aboard the Runaway Train that the investigation into the rape and murder of Angela Correa
turned into.
The notion that a whole raft of exculpatory information known to Officers Tumolo, Levine and McIntyre, including false representations of Deskovic’s “independent knowledge,” the fabrication of evidence, material facts regarding the circumstances surrounding the “confession,” exculpatory statements from Peekskill High School students, etc., could be concealed from George Bolen, is totally incompatible with all that this
reporter knows about the experience and cunning of that prosecutor.
Judge Karas notes “the DNA test results were returned just days after Deskovic’s indictment,” and, further, that, “the tests definitively excluded
Deskovic as the source of semen found in Angela Correa’s body”, and, also that, “microscopic hair analysis of hairs found on Angela Correa’s
body excluded Deskovic as the source of those hairs.”
What was Bolen’s Big Rush to get an indictment, knowing that DNA and hair follicle results would be coming any day, and would be rock-solid
evidence for presentation to a grand jury. The real issue was whether the FBI lab had already tipped Bolen off.
In all fairness, Karas does indicate that once Bolen was officially notified of the DNA and hair results, he thereafter, as alleged, “directed that additional investigation be done by the Peekskill Police Department, and personally conducted and personally directed further investigation to provide an explanation for the presence of another man’s semen inside Angela Correa following her rape and murder.”
Further, after revealing that Plaintiffs alleged that Bolen and Dr. Luis Roh had determined they would provide evidence that the victim
had scarring on her hymen indicating she had been sexually active, the Judge states, “Bolen knew, or should have known, that Roh [Deputy Chief
Medical Examiner for Westchester County] had no scientific basis for this conclusion, and that he had not observed the scarring he had reported
to Bolen,” without question, exposing the most egregious of George Bolen’s feats of engineering.
Nonetheless, despite his illustration of such malicious prosecutorial misconduct, by Bolen’s own design after the obtaining of a “ham sandwich indictment,” the Judge unfortunately expresses the view that all of his relevant prosecutorial misconduct was in the capacity of
The Peoples’ Advocate, and not in his investigative capacity, where only qualified immunity would be available.
In the discussion section of Judge Karas’ decision, he writes, “The Supreme Court has held that while a complaint attacked by a Rule 12(b)6
Motion To Dismiss, does not need factual allegations, a Plaintiff ’s obligation to provide the grounds of his ‘entitlement to believe’ requires more
than labels and conclusions and a formulaic rescitation of the elements of a Cause Of Action will not do.”
This reporter believes it is more than “mere speculation” that Bolen was aware of the fact that DNA testing had proved the semen and the
hairs found in and on Angela Correa, respectively, were not from Jeffrey Deskovic, fully eight months before he took him to trial with suborned,
perjured testimony.
We firmly believe that at trial Dr. Luis Roh will surely implicate Bolen and very likely tell a jury that the reason he fabricated the scarred hymen
evidence was to help Bolen go forward with his misguided, malicious prosecution of Jeffrey Deskovic. Judge Karas, in discussing absolute
immunity, indicates, “Bolen claims he should be dismissed from Plaintiff ’s actions because he is absolutely immune from Section 1983
liability for his alleged conduct.”
He then cites Burns v. Reed (1991), “Courts recognize absolute immunity for official conduct to the same extent it was recognized at Common Law.” He then informs, quoting from Malley v. Briggs (1986), “Since [Section 1983] on its face does not provide for any immunities [courts would be] going far to read into it an absolute immunity for conduct which was only accorded qualified immunity in 1871, [when the statute was enacted].” Turning to a fairly recent Second Circuit case, Shmueli v. City Of New York (2005), Karas lifts the pronouncement, “It is now well established that a State Prosecuting Attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution, is immune from civil suit for damages under Section 1983.”
Continuing, he borrows from another Second Circuit decision, Hill v. City Of New York (1995), “Extending absolute immunity to such prosecutorial misconduct insures that public prosecutors can zealously perform the prosecutorial duties of the Office [without being] compelled to work under the constant threat of legal reprisals.”
We would ask whether George Bolen was acting within the scope of his duties when he refused to acknowledge the implication of the negative DNA and hair follicle test results? And, we would further ask whether inventing a terribly defaming and demeaning lie about young victim Angela Correa was also within the scope of his duties? Finally, we would inquire whether “zealous performance” includes unlawful scheming and intentionally sending an innocent 16-year-old child to prison for life, or, whether it is really all about collecting two paychecks a month?
Surely there would be no “retaliation” to worry about if prosecutors were doing what they are supposed to be doing, and not sending innocent persons to prison while turning guilty ones free to repeat their crimes.
Analysis:
If absolute immunity attaches when a prosecutor is acting as “an advocate for the State,” how was George Bolen ever an advocate for the State? The People are the State; and, how is he advocating for the People when he knowingly sends one of the People to prison for a crime he knows, or should know, he is innocent of, while permitting the real perpetrator to roam free, and to kill still another innocent person? Does concocting a false story to negate the DNA evidence of an accused person’s innocence come under, “Appropriate preparation for presentation?”
We contend that George Bolen was clearly a rogue prosecutor outside his role as an Advocate For The People; and that the People did not want Bolen to intentionally strive to send an innocent 16-year-old boy, without any criminal record, to prison for a crime Bolen knew he did not commit.
Judge Karas, citing several cases, explains, “For example, absolute immunity is not available when a prosecutor advises the police whether
probable cause exists during their pre-trial investigation.” We ask, how would such advice differ from a conversation by a prosecutor with
a medical examiner, assuming such exchange was in good faith? After all, both the police and the medical examiner perform an evidence-gathering
function, the product of which must reach a particular threshhold.
When the test results came back negative, Bolen knew he had no probable cause. A forced confession from a scared, 16-year-old boy surely
could not trump DNA and hair follicle evidence that did not match him. Twenty-five pages into his decision, Judge Karas declares, “The
Court finds that even taking the Plaintiff’s allegations to be true, Bolen’s allegedly improper actions took place in the judicial phase of
the criminal process. To begin with, it is important to note that the alleged conduct that forms the basis for Plaintiff’s claims against Bolen
occurred after Deskovic’s indictment.
And, from the allegations in Plaintiff’s complaint, it is evident not only that Bolen had no reason to doubt bona fides of the indictment, but also
that he had strong reason to believe that Deskovic was guilty based on his supposed confession.”
With all due respect to the Judge; as to the fact that Bolen’s act followed Deskovic’s indictment, it is very clear that Bolen rushed into the grand jury a day or two before he knew he would have the official results and, that the case was intentionally brought to the grand jury
a few days before the DNA and hair follicle results would be officially released for the following reason:
Bolen already knew the results and knew if he officially had them, he would have to acknowledge and explain them, and likely not get his
indictment, and not be eligible for absolute immunity if caught doing what he was about to do with Dr. Roh.
The Court Report
By Richard Blassberg
Decision By Federal District Judge Kenneth M. Karas
Illustrates Need To Enact Federal Legislation To Curtail
Prosecutorial Misconduct And Wrongful Conviction
Most readers of The Guardian, indeed, most news-conscious Westchester residents, are by now quite familiar with the outrageous and unlawful
treatment of a young, babyfaced, 16-year-old Peekskill schoolboy, Jeffrey Deskovic, received at the hands of the Peekskill Police, the Westchester District Attorney’s Office, and Medical Examiner’s Office, upon the brutal rape and murder of one of his high school classmates, 15-year-old Angela Correa.
Deskovic, who was maliciously and cynically robbed of 17 years of his youth and young adulthood by mindless, wretched individuals masquerading
as public servants, can never be adequately compensated for all that has been taken both from him and from his loved ones, is nevertheless seeking some nancial award which may help ease the pain, and the developmental and experiential gaps in his life with which he will likely continue to struggle so long as he lives.
Toward that end, since emerging from prison, he has been engaged in a civil rights lawsuit, principally a Section 1983 suit against the agencies and individuals whose deliberate and criminal conduct ruthlessly stole so much of his youth and promise. Amazingly, this young man who emerged from State Prison three years ago, did so without a trace of bitterness or anger, but rather an abiding commitment to working hard to prevent others from undergoing the nightmare of prosecutorial misconduct and wrongful conviction. He has been a tireless advocate, writing and speaking out for legislation to prevent the kind of tyrannical and heinous conduct by state actors under the Color of Law that can best be described as “man’s in-
humanity to man.”
The subject of this Court Report is the action taken by Judge Kenneth M. Karas with respect to a Motion to Dismiss the charges against former
Westchester Assistant District Attorney George Bolen, the chief prosecutor of Jeffrey Deskovic some 20 years ago, for a rape and murder he had
every reason to realize the youngster was totally innocent of.
One would hope that the penultimate nature of the horrific assault on justice that was perpetrated under the supervision and self-serving evil of ADA George Bolen might inspire all engaged in its discovery and reconciliation to carefully consider the global implications of their judgments
and actions particularly with respect to those who have gone to their execution under similar, unthinkable circumstances, and, most importantly, those who may still.
The rape and murder of Angela Correa, a girl he hardly knew, except by sight, on November 17, 1989, would prove to be a tragedy of defining
significance for a 16-year-old school-mate who would quickly become the target of a malicious and mindless campaign to produce a believable “monster” to satisfy the calls for a suspect, anyone who, once taken into custody, would calm the fears of a city consisting of fewer than 7,000 households.
Judge Karas would seem early on to be emphasizing the unlawful aspects of the Peekskill Police Department’s conduct with respect to Deskovic in the rst seven pages of his 35-page decision. Within three weeks of the crime, Detectives Tumolo, Levine, and McIntyre, without one concrete piece of evidence, were convinced that Deskovic was a “person of interest.”
Officer David Levine would, as noted by Karas, despite prior notification of the attachment of counsel, coerce the naive youngster into waiving
his right to counsel, whereupon he and his fellow Peekskill Police Officers surely, under the supervision and awareness of ADA Bolen “interrogated Deskovic on numerous other occasions.”
Judge Karas would seem to go out of his way not only to point out the unlawful activities of the Peekskill Police in their dealings with Deskovic,
but signi cantly emphasized that those same police, with respect to Deskovic’s knowing of details, falsely “represented in police reports, in conversations with prosecutors before trial, at pre-trial hearings, and a trial that these public facts were actually the product of Deskovic’s independent knowledge about the crime.”
When making detailed reference to the horrific January 25th, 1990 scenario under which Jeffrey Deskovic was unlawfully kidnapped by Tumolo,
McIntyre, and Levine while on his way to school, and brought to a virtual torture chamber in Brewster to be interrogated for some eight hours; most of that time attached to a polygraph machine, interestingly Karas initially makes no reference to the polygraph nor then-Putnam County Deputy Sheri Daniel Stephens.
Judge Karas does not fail to note Detective McIntyre’s exclusions from his police report, of any mention of threats of violence against Deskovic,
and the promise that he would “go home and receive mental health treatment” if he simply confessed, as well as Deputy Stephens’ reported false
representation that facts conveyed by Deskovic originated with him rather than the Peekskill Police Officers.”
It should be noted that the whole polygraph confession incident took place in Brewster, some 20 miles away from Peekskill, in a place totally unfamiliar to Deskovic.
Karas takes the opportunity to point out, “Plaintiffs also specifically allege that prosecutors were unaware of the bulk of the Peekskill Police
Departments’ officers’ misconduct and of other potentially exculpatory information.” One would be naive to believe that George Bolen could be, or would be, kept in the dark as to the details of how the false confession was extracted from 16-year-old Jeffrey.
There can be no question that Bolen was the engineer aboard the Runaway Train that the investigation into the rape and murder of Angela Correa
turned into.
The notion that a whole raft of exculpatory information known to Officers Tumolo, Levine and McIntyre, including false representations of Deskovic’s “independent knowledge,” the fabrication of evidence, material facts regarding the circumstances surrounding the “confession,” exculpatory statements from Peekskill High School students, etc., could be concealed from George Bolen, is totally incompatible with all that this
reporter knows about the experience and cunning of that prosecutor.
Judge Karas notes “the DNA test results were returned just days after Deskovic’s indictment,” and, further, that, “the tests definitively excluded
Deskovic as the source of semen found in Angela Correa’s body”, and, also that, “microscopic hair analysis of hairs found on Angela Correa’s
body excluded Deskovic as the source of those hairs.”
What was Bolen’s Big Rush to get an indictment, knowing that DNA and hair follicle results would be coming any day, and would be rock-solid
evidence for presentation to a grand jury. The real issue was whether the FBI lab had already tipped Bolen off.
In all fairness, Karas does indicate that once Bolen was officially notified of the DNA and hair results, he thereafter, as alleged, “directed that additional investigation be done by the Peekskill Police Department, and personally conducted and personally directed further investigation to provide an explanation for the presence of another man’s semen inside Angela Correa following her rape and murder.”
Further, after revealing that Plaintiffs alleged that Bolen and Dr. Luis Roh had determined they would provide evidence that the victim
had scarring on her hymen indicating she had been sexually active, the Judge states, “Bolen knew, or should have known, that Roh [Deputy Chief
Medical Examiner for Westchester County] had no scientific basis for this conclusion, and that he had not observed the scarring he had reported
to Bolen,” without question, exposing the most egregious of George Bolen’s feats of engineering.
Nonetheless, despite his illustration of such malicious prosecutorial misconduct, by Bolen’s own design after the obtaining of a “ham sandwich indictment,” the Judge unfortunately expresses the view that all of his relevant prosecutorial misconduct was in the capacity of
The Peoples’ Advocate, and not in his investigative capacity, where only qualified immunity would be available.
In the discussion section of Judge Karas’ decision, he writes, “The Supreme Court has held that while a complaint attacked by a Rule 12(b)6
Motion To Dismiss, does not need factual allegations, a Plaintiff ’s obligation to provide the grounds of his ‘entitlement to believe’ requires more
than labels and conclusions and a formulaic rescitation of the elements of a Cause Of Action will not do.”
This reporter believes it is more than “mere speculation” that Bolen was aware of the fact that DNA testing had proved the semen and the
hairs found in and on Angela Correa, respectively, were not from Jeffrey Deskovic, fully eight months before he took him to trial with suborned,
perjured testimony.
We firmly believe that at trial Dr. Luis Roh will surely implicate Bolen and very likely tell a jury that the reason he fabricated the scarred hymen
evidence was to help Bolen go forward with his misguided, malicious prosecution of Jeffrey Deskovic. Judge Karas, in discussing absolute
immunity, indicates, “Bolen claims he should be dismissed from Plaintiff ’s actions because he is absolutely immune from Section 1983
liability for his alleged conduct.”
He then cites Burns v. Reed (1991), “Courts recognize absolute immunity for official conduct to the same extent it was recognized at Common Law.” He then informs, quoting from Malley v. Briggs (1986), “Since [Section 1983] on its face does not provide for any immunities [courts would be] going far to read into it an absolute immunity for conduct which was only accorded qualified immunity in 1871, [when the statute was enacted].” Turning to a fairly recent Second Circuit case, Shmueli v. City Of New York (2005), Karas lifts the pronouncement, “It is now well established that a State Prosecuting Attorney who acted within the scope of his duties in initiating and pursuing a criminal prosecution, is immune from civil suit for damages under Section 1983.”
Continuing, he borrows from another Second Circuit decision, Hill v. City Of New York (1995), “Extending absolute immunity to such prosecutorial misconduct insures that public prosecutors can zealously perform the prosecutorial duties of the Office [without being] compelled to work under the constant threat of legal reprisals.”
We would ask whether George Bolen was acting within the scope of his duties when he refused to acknowledge the implication of the negative DNA and hair follicle test results? And, we would further ask whether inventing a terribly defaming and demeaning lie about young victim Angela Correa was also within the scope of his duties? Finally, we would inquire whether “zealous performance” includes unlawful scheming and intentionally sending an innocent 16-year-old child to prison for life, or, whether it is really all about collecting two paychecks a month?
Surely there would be no “retaliation” to worry about if prosecutors were doing what they are supposed to be doing, and not sending innocent persons to prison while turning guilty ones free to repeat their crimes.
Analysis:
If absolute immunity attaches when a prosecutor is acting as “an advocate for the State,” how was George Bolen ever an advocate for the State? The People are the State; and, how is he advocating for the People when he knowingly sends one of the People to prison for a crime he knows, or should know, he is innocent of, while permitting the real perpetrator to roam free, and to kill still another innocent person? Does concocting a false story to negate the DNA evidence of an accused person’s innocence come under, “Appropriate preparation for presentation?”
We contend that George Bolen was clearly a rogue prosecutor outside his role as an Advocate For The People; and that the People did not want Bolen to intentionally strive to send an innocent 16-year-old boy, without any criminal record, to prison for a crime Bolen knew he did not commit.
Judge Karas, citing several cases, explains, “For example, absolute immunity is not available when a prosecutor advises the police whether
probable cause exists during their pre-trial investigation.” We ask, how would such advice differ from a conversation by a prosecutor with
a medical examiner, assuming such exchange was in good faith? After all, both the police and the medical examiner perform an evidence-gathering
function, the product of which must reach a particular threshhold.
When the test results came back negative, Bolen knew he had no probable cause. A forced confession from a scared, 16-year-old boy surely
could not trump DNA and hair follicle evidence that did not match him. Twenty-five pages into his decision, Judge Karas declares, “The
Court finds that even taking the Plaintiff’s allegations to be true, Bolen’s allegedly improper actions took place in the judicial phase of
the criminal process. To begin with, it is important to note that the alleged conduct that forms the basis for Plaintiff’s claims against Bolen
occurred after Deskovic’s indictment.
And, from the allegations in Plaintiff’s complaint, it is evident not only that Bolen had no reason to doubt bona fides of the indictment, but also
that he had strong reason to believe that Deskovic was guilty based on his supposed confession.”
With all due respect to the Judge; as to the fact that Bolen’s act followed Deskovic’s indictment, it is very clear that Bolen rushed into the grand jury a day or two before he knew he would have the official results and, that the case was intentionally brought to the grand jury
a few days before the DNA and hair follicle results would be officially released for the following reason:
Bolen already knew the results and knew if he officially had them, he would have to acknowledge and explain them, and likely not get his
indictment, and not be eligible for absolute immunity if caught doing what he was about to do with Dr. Roh.
Thursday, June 4, 2009
Wayne Simoes/Yonkers Police/Irma Marquez.
The Advocate
Richard Blassberg
What Were Those Jurors Thinking About?
Last Wednesday afternoon, May 27, the jury in the federal criminal trial of Wayne Simoes, Yonkers Police Officer, brought in a verdict declaring the 39-year old, nine-year veteran of the force, “Not Guilty”, within minutes of their self-imposed 4 pm deadline. Earlier, at 1 pm, they had sent out a note to Judge Karas asking, “To be willful, does the person need to have a bad or evil purpose?” After reading the note aloud in the presence of Defense attorneys and Government prosecutors, but out of the presence of the jurors, the Judge, almost spontaneously, responded, “Yes”.
There then ensued a long conversation between Karas, Defense Attorney Andrew Quinn, and Prosecutors, principally Assistant United States Attorney Torrance, assisted at one point by Cynthia Dunne, who significantly prefaced her remarks to the Judge with an apology for speaking despite having apparently promised she would not be throughout the trial. In sum and substance, Quinn would argue repeatedly that a simple “yes” answer would do just fine while Dunne kept insisting, through Torrance, that there was a need for qualification of the affirmative response. Quinn, at one point, declared, and the Judge agreed, “A bad or evil purpose is what separates this procedure from a 1983 [Civil Rights] suit, a criminal from a civil suit.”
Karas bolstered the comparison by saying, “That’s what distinguishes a 242 [federal criminal statute] from a 1983,” further stating, “An evil act isn’t necessarily a crime. Merely saying ‘yes’ is not helpful.” Quinn, however, came back, “Most respectfully, I believe a simple ‘yes’ is best.” The fact was the jury was stumbling over the notion that in order to find Wayne Simoes guilty, they would need to find that he intended the outcome, and this jury, this middle-class, sheltered jury, could not grapple with that conclusion. Never mind what horrible damage was done to Irma Marquez’ face, head and neck as she was deliberately swung like a rag doll, face-first, to the tile floor; this jury’s sympathies were with a rogue, mindless cop with an abundance of testosterone, and not with his victim.
Therein lies the significance of the very real role that Janet DiFiore played in the whole, horrible affair. By not only failing to prosecute the
rogue cop, the perpetrator, Wayne Simoes, as any honest, uncorrupted DA would have, but instead prosecuting his victim, Irma Marquez, on bogus, trumped-up charges of Disorderly Conduct and Obstructing Governmental Administration, Janet DiFiore insured the fact that Simoes would not be tried for Assault, or Reckless Endangerment, or any other offense which he would’ve been convicted of. As a result, once the
videotape repeatedly aired, the United States Attorney’s Office was virtually compelled to step in and charge Simoes with the federal charge of Denying Marquez Her Civil Rights By Use Of Excessive Force. That would require “proof of intent,” in order to obtain a conviction.
In reality, when the jurors sent out their request for clarification, they were signalling their difficulty in accepting their assignment. They were unwilling, for the most part, to acknowledge that a policeman, someone they wanted to believe was really motivated to protect them and even someone so unlike them, Irma Marquez, could possibly have purposely used such force, driving her face and head from more than seven feet in the air, to the hard tile floor, then, immediately jumping on her unconscious body to handcuff her without hesitating a second to examine
what damage had been done to her face and head.
So unwilling was this jury to think about a victim who had been out drinking in a bar in the poor side of the city, that they never stopped to ask, “If he didn’t intend to hurt her, why in Hell did he bodyslam her? And, if he didn’t intend to bodyslam her, why lift her two feet off the ground, putting her head seven feet in the air? Was he intending to slowly slide her back on her feet?”
Then there was the issue of the rogue cop’s ‘cheering squad’. Of course, his wife and parents and, perhaps, some of his buddies at work were to be legitimately expected to come to Court and support him. However, what began on the first day of trial, with about 12 Yonkers police officers, grew daily until, by Wednesday, some 37 officers, including PBA President Eddie Armour, a well-known henchman of, and apologist for, DA Janet DiFiore, filled not only the Defendant’s side of the spectator’s gallery, but much of the other side as well. These officers were clearly intimidating to the jurors. Their message went far beyond mere moral support. Theirs was a You v. Us mentality and, clearly, one of approval of what their pal had done.
There is a big difference between the kind of crowd that will come out for a wrongfully-prosecuted cop, and one that will support a rogue who got caught on tape. Simoes’ fan club was basically telling the world, “We would have done the same.” And, given the number of individuals that we are aware of, who have been subjected to Yonkers police brutality, scores and scores of them; men, women and children; witnessing some three dozen of them clapping their hands vigorously for a cop who bodyslammed a 120-lb, five-foot tall woman, and who got away with it, was no surprise at all!
The real issue now involves just what this acquittal means. There are many unanswered questions. Some enlightened observers are questioning whether the United States Attorney, in assigning two second-string prosecutors, Skotko and Torrance, to the trial, while keeping their female gladiator, Cynthia Dunne, confined to the role of advisor throughout the trial, was really serious about getting a conviction or just faking it. After all, here they had what should have been an easy conviction of someone who the world could plainly see intended to render
the little woman unconscious and helpless; someone who was damned guilty; so guilty that several police officers, including a captain, who is
now a deputy chief, committed perjury under oath at a state trial of the victim, and before Internal Affairs in their effort to cover him up.
Yet, that same United States Attorney’s Office has kept the same Cynthia Dunne working hard at harassing, trying, and wrongfully convicting an innocent former County Correction Officer, Paul Cote, in another bodyslam case where the videotape, and other Brady material, if not withheld by Dunne, would have proven Defendant Cote’s innocence and the guilt of John Mark Reimer, the Government’s key, lying, witness. Clearly, the Government’s sincerity is in question.
Along these same lines, how is it that the FBI, after years of investigating numerous documented cases of Yonkers police brutality, and the Justice Department for whom the information has been gathered, have so far failed to prosecute even a small fraction of them, and only stepped into the Simoes case because of its strong public exposure and the absurdity of DA DiFiore’s prosecution of such an obviously innocent and egregiously injured victim?
The sad reality is that the Federal Government, because of the unethical and wrongful social relationship between former United States Attorney Michael Garcia and DA DiFiore, has thus far let down the People of Westchester, particularly those in Yonkers; innocent men, women and children who have been, and continue to be, harassed and brutalized by a stubborn contingent of rogue cops whose activities we can only guess will now be stepped up and embrazoned by the outcome of the Simoes case.
In conclusion, Yonkers Police Officer Wayne Simoes did not slip, nor accidentally drop Irma Marquez, as his Defense attorney, Andrew
Quinn, attempted to sell as alternate excuses for the outcome of his violent behavior. If that had been the case, what was he intending to do with her if he didn’t slip? He intended to do exactly what he started out to do when he grabbed her and elevated her to where her head came crashing down from some seven feet above the floor in an arc the force and velocity of which made her hair fly out as though she were sitting in an open convertible at 70 mph.
Defense counsel never offered any reasonable explanation of what Wayne Simoes was intending to do with Irma Marquez if he didn’t “slip” or she didn’t “fall”. Any pretense that Simoes hadn’t intended to bodyslam her was negated by his immediate occupation with handcuffing her upon her collision with the tile floor, that Deputy Chief Geiss testified, “sounded like the loudest slap he had ever heard, and at the same
time, like a bowling ball falling from the second floor.” No matter, this officer, who will claim for the rest of his life that he never meant to do what he did, never meant to hurt her, went right to the business of handcuffing her.
Truth be told, now that a police brutality as obvious and brazen as the one perpetrated against Irma Marquez has gone unpunished, the People of Yonkers can expect even more than they have already suffered with, so long as Janet DiFiore is the District Attorney.
The Court Report.
Thursday, June 4, 2009
The Court Report
By Richard Blassberg
Former New York City Police Commissioner Bernard Kerik
Indicted In False Statements Case In District Of Columbia
LEV L. DASSIN, the Acting United States Attorney for the Southern District of New York, announced that BERNARD KERIK, a former New York City Police Commissioner and Commissioner of the New York City Department of Corrections, was indicted by a federal grand jury sitting in the District of Columbia on charges of making false statements to White House officials during his vetting for the position of Secretary of the United States Department of Homeland Security. According to the Indictment: KERIK, in 1999 and 2000--when he was the New York City Commissioner of Corrections and then the City’s Police Commissioner--spoke to City regulators on behalf of contractors who were seeking one or more permits to do business in and with the City. The contractors then spent more than $255,000 renovating KERIK’s apartment in Riverdale, New York. Thereafter, in 2004, when KERIK was under consideration by the White House for the
position of Secretary of the United States Department of Homeland Security, KERIK gave false and misleading answers to questions by White House officials about his relationship with the contractors.
In particular, and among other things, the Indictment alleges that KERIK falsely denied that there was any possible concern the President should have about KERIK’s relationship with the contractors, and that as a public official he had had any financial dealings with individuals seeking to do business with the City; and that KERIK sent an e-mail to a White House official containing false and misleading statements concerning the renovations to the apartment in Riverdale.
Charges similar to those in today’s indictment were initially brought as part of an indictment returned in the Southern District of New York in November 2007 but were dismissed from that indictment because the crimes are alleged to have occurred in the District of Columbia and not in the Southern District of New York.
If convicted, KERIK faces a maximum prison sentence of five years and a maximum fine of $250,000 on each of the two false statement charges in the Indictment.
Mr. DASSIN praised the Federal Bureau of Investigation and the Criminal Investigations Division of the Internal Revenue Service for their
efforts during the investigation, and thanked the United States Attorney’s Office for the District of Columbia for its assistance in the transfer of this matter.
Assistant United States Attorneys ELLIOTT B. JACOBSON and MICHAEL S. BOSWORTH are in charge of the prosecution and have been designated as Special Assistant United States Attorneys in the District of Columbia for the purpose of prosecuting this Indictment.
The charges contained in the Indictment are merely accusations and the defendant is innocent unless and until proven guilty.
The Court Report
By Richard Blassberg
Former New York City Police Commissioner Bernard Kerik
Indicted In False Statements Case In District Of Columbia
LEV L. DASSIN, the Acting United States Attorney for the Southern District of New York, announced that BERNARD KERIK, a former New York City Police Commissioner and Commissioner of the New York City Department of Corrections, was indicted by a federal grand jury sitting in the District of Columbia on charges of making false statements to White House officials during his vetting for the position of Secretary of the United States Department of Homeland Security. According to the Indictment: KERIK, in 1999 and 2000--when he was the New York City Commissioner of Corrections and then the City’s Police Commissioner--spoke to City regulators on behalf of contractors who were seeking one or more permits to do business in and with the City. The contractors then spent more than $255,000 renovating KERIK’s apartment in Riverdale, New York. Thereafter, in 2004, when KERIK was under consideration by the White House for the
position of Secretary of the United States Department of Homeland Security, KERIK gave false and misleading answers to questions by White House officials about his relationship with the contractors.
In particular, and among other things, the Indictment alleges that KERIK falsely denied that there was any possible concern the President should have about KERIK’s relationship with the contractors, and that as a public official he had had any financial dealings with individuals seeking to do business with the City; and that KERIK sent an e-mail to a White House official containing false and misleading statements concerning the renovations to the apartment in Riverdale.
Charges similar to those in today’s indictment were initially brought as part of an indictment returned in the Southern District of New York in November 2007 but were dismissed from that indictment because the crimes are alleged to have occurred in the District of Columbia and not in the Southern District of New York.
If convicted, KERIK faces a maximum prison sentence of five years and a maximum fine of $250,000 on each of the two false statement charges in the Indictment.
Mr. DASSIN praised the Federal Bureau of Investigation and the Criminal Investigations Division of the Internal Revenue Service for their
efforts during the investigation, and thanked the United States Attorney’s Office for the District of Columbia for its assistance in the transfer of this matter.
Assistant United States Attorneys ELLIOTT B. JACOBSON and MICHAEL S. BOSWORTH are in charge of the prosecution and have been designated as Special Assistant United States Attorneys in the District of Columbia for the purpose of prosecuting this Indictment.
The charges contained in the Indictment are merely accusations and the defendant is innocent unless and until proven guilty.
Thursday, May 21, 2009
At The Westchester Democratic Convention
The Advocate
Richard Blassberg
Democratic Party Insiders Stage
A Very Tightly Controlled
Un-Democratic Nominating Convention
Last Wednesday night the clique that tightly controls all that goes on in County government to the point where the County Legislature is
nothing more than a rubber stamp for the will and the whim of County Executive Andrew Spano, ran a totally choreographed, really un-Democratic Party nominating event.
Entering the arena at the County Center in White Plains, we were immediately struck by the predetermined nature of it all. Signs declaring
Andrew Spano, Janet DiFiore, and Tim Idoni, were strung up everywhere to the exclusion of all others as though the outcome, the very
purpose of the evening, had already been pre-determined.
A district leader from Mount Vernon was told, in no uncertain terms by Reginald LaFayette, that he could not put up a sign for Tony Castro,
candidate for District Attorney. And, in fact, when he then placed some 150 Tony Castro signs at a table next to the entrance where all delegates came in to the arena, and where there were three other stacks of signs, all for Spano, Idoni and DiFiore, those Castro signs were quickly removed, never to be seen again.
When Andrew Spano, the County Executive who first ran for the Office 12 years ago, telling everyone he was only seeking two terms, and who is now, at 74, seeking a fourth, took to the podium, it was difficult to determine just what he was thinking about when he uttered the following: “You flush the toilet. Ever wonder where it goes? That’s County Government.” This reporter certainly had to agree that what has
been going on in County Government between the County Executive and the Board of Legislators doesn’t pass the smell test.
Spano then, apparently not quite through with the subject of waste matter, proceeded to tell the delegates a whopper of a lie, declaring that
he had “gotten the Mob out of the solid waste business in Westchester.”
This reporter was present, some four years ago, having been personally invited to attend a meeting of the County Legislature’s Solid Waste
Subcommittee, by its chair, Tom Abinanti, when then-Deputy County Executive Larry Schwartz stood at the doorway to the conference room, and, one by one, called each of the several legislators present out of the room in order to twist their arms into approving an $87 million, five-year contract, with City Carting of Connecticut, a company the City of New York refused to do business with because of its known Mob connections, rather than exercise the County’s available option to renew with the then-current hauler for only $70 million for the next five years.
When asked by this reporter if the original hauler, at $70 million, had been doing a good job, then- Solid Waste Commissioner Landi, another Andy Spano crony, admitted that they were. When then asked, “Why, then, did you not renew the option with them for the next five years, at $17 million less than you will now be paying?”, Landi said, “We wanted to test the waters.” Landi knew then, as did each legislator in the room, that trash hauling was a very tightly-held and choreo-graphed industry, where prices only went up, just like County government over the last 12 years; just like the so-called nominating convention.
Curiously, when it came to nominating a candidate for District Attorney, Party Chairman Reginald LaFayette insisted that Tony Castro’s,
and Janet DiFiore’s, speeches could only be given after a voice vote was recorded declaring DiFiore the nominee. Apparently he was so insecure that, perhaps, if they each spoke before the balloting, perhaps Castro might have inspired too many of even the tightly-controlled, rather unenthusiastic, crowd.
Truth be told, Spano never really supported Tony Castro in either of his prior attempts to become District Attorney. Andrew Spano has far too many skeletons in his closet, both as County Clerk and as County Executive, to ever risk having a competent, experienced law-abiding prosecutor, the likes of Tony Castro, in the District Attorney’s Office. Spano and his cronies needed, and still need, people like Jeanine Pirro and Janet DiFiore, who will sacrifice the interests of decent, innocent individuals, police officers and civilians alike, while covering up crimes and malfeasance, outright corruption in office. Hence, the all-out effort to put Janet DiFiore, a horrible, self-serving Republican DA, across as a Democrat.
Spano expects the real Democrats, the families who are not Fat Cat Insiders, but who, instead, are struggling with the highest taxes in the nation, to accept DiFiore as one of their own, despite her well-known, ruthless handling of innocent victims, and her vindictive crushing of honest, hard-working police officers. He expects her acceptance from rank and file Democrats, just as he expected them to accept the $5,000 raises he wanted to gift to his crony commissioners already getting $155,000 salaries last Fall. In short, he wants Democratic families to drink the Kool-Aid and accept Janet DiFiore despite the fact that a News 12 poll, taken several weeks ago, with a hefty 999 viewer response that indicated voters for District Attorney favored Tony Castro by an overwhelming 55 percent, Dan Schorr, the Republican, with 27 percent,
and incumbent Janet DiFiore, a distant third, with only 18 percent.
We are confident that, in the certain primary between Castro and DiFiore, Westchester’s Democratic families will not be fooled into Drinking
The Kool-Aid for DiFiore.
“You flush the toilet. Ever wonder where it goes? That’s County Government.”
Westchester County Executive Andrew Spano
Richard Blassberg
Democratic Party Insiders Stage
A Very Tightly Controlled
Un-Democratic Nominating Convention
Last Wednesday night the clique that tightly controls all that goes on in County government to the point where the County Legislature is
nothing more than a rubber stamp for the will and the whim of County Executive Andrew Spano, ran a totally choreographed, really un-Democratic Party nominating event.
Entering the arena at the County Center in White Plains, we were immediately struck by the predetermined nature of it all. Signs declaring
Andrew Spano, Janet DiFiore, and Tim Idoni, were strung up everywhere to the exclusion of all others as though the outcome, the very
purpose of the evening, had already been pre-determined.
A district leader from Mount Vernon was told, in no uncertain terms by Reginald LaFayette, that he could not put up a sign for Tony Castro,
candidate for District Attorney. And, in fact, when he then placed some 150 Tony Castro signs at a table next to the entrance where all delegates came in to the arena, and where there were three other stacks of signs, all for Spano, Idoni and DiFiore, those Castro signs were quickly removed, never to be seen again.
When Andrew Spano, the County Executive who first ran for the Office 12 years ago, telling everyone he was only seeking two terms, and who is now, at 74, seeking a fourth, took to the podium, it was difficult to determine just what he was thinking about when he uttered the following: “You flush the toilet. Ever wonder where it goes? That’s County Government.” This reporter certainly had to agree that what has
been going on in County Government between the County Executive and the Board of Legislators doesn’t pass the smell test.
Spano then, apparently not quite through with the subject of waste matter, proceeded to tell the delegates a whopper of a lie, declaring that
he had “gotten the Mob out of the solid waste business in Westchester.”
This reporter was present, some four years ago, having been personally invited to attend a meeting of the County Legislature’s Solid Waste
Subcommittee, by its chair, Tom Abinanti, when then-Deputy County Executive Larry Schwartz stood at the doorway to the conference room, and, one by one, called each of the several legislators present out of the room in order to twist their arms into approving an $87 million, five-year contract, with City Carting of Connecticut, a company the City of New York refused to do business with because of its known Mob connections, rather than exercise the County’s available option to renew with the then-current hauler for only $70 million for the next five years.
When asked by this reporter if the original hauler, at $70 million, had been doing a good job, then- Solid Waste Commissioner Landi, another Andy Spano crony, admitted that they were. When then asked, “Why, then, did you not renew the option with them for the next five years, at $17 million less than you will now be paying?”, Landi said, “We wanted to test the waters.” Landi knew then, as did each legislator in the room, that trash hauling was a very tightly-held and choreo-graphed industry, where prices only went up, just like County government over the last 12 years; just like the so-called nominating convention.
Curiously, when it came to nominating a candidate for District Attorney, Party Chairman Reginald LaFayette insisted that Tony Castro’s,
and Janet DiFiore’s, speeches could only be given after a voice vote was recorded declaring DiFiore the nominee. Apparently he was so insecure that, perhaps, if they each spoke before the balloting, perhaps Castro might have inspired too many of even the tightly-controlled, rather unenthusiastic, crowd.
Truth be told, Spano never really supported Tony Castro in either of his prior attempts to become District Attorney. Andrew Spano has far too many skeletons in his closet, both as County Clerk and as County Executive, to ever risk having a competent, experienced law-abiding prosecutor, the likes of Tony Castro, in the District Attorney’s Office. Spano and his cronies needed, and still need, people like Jeanine Pirro and Janet DiFiore, who will sacrifice the interests of decent, innocent individuals, police officers and civilians alike, while covering up crimes and malfeasance, outright corruption in office. Hence, the all-out effort to put Janet DiFiore, a horrible, self-serving Republican DA, across as a Democrat.
Spano expects the real Democrats, the families who are not Fat Cat Insiders, but who, instead, are struggling with the highest taxes in the nation, to accept DiFiore as one of their own, despite her well-known, ruthless handling of innocent victims, and her vindictive crushing of honest, hard-working police officers. He expects her acceptance from rank and file Democrats, just as he expected them to accept the $5,000 raises he wanted to gift to his crony commissioners already getting $155,000 salaries last Fall. In short, he wants Democratic families to drink the Kool-Aid and accept Janet DiFiore despite the fact that a News 12 poll, taken several weeks ago, with a hefty 999 viewer response that indicated voters for District Attorney favored Tony Castro by an overwhelming 55 percent, Dan Schorr, the Republican, with 27 percent,
and incumbent Janet DiFiore, a distant third, with only 18 percent.
We are confident that, in the certain primary between Castro and DiFiore, Westchester’s Democratic families will not be fooled into Drinking
The Kool-Aid for DiFiore.
“You flush the toilet. Ever wonder where it goes? That’s County Government.”
Westchester County Executive Andrew Spano
The Westchester Democratic Convention
Democratic Committeeman Maurio M. Sax’s
Nominating Speech For Tony Castro
Chairman LaFayette, fellow Delegates, eight years ago I had the privilege to stand before you and place in nomination Tony Castro for Westchester County District Attorney. At that time you enthusiastically, and overwhelmingly, made him our nominee for that Office. Four years later, again, you gave him your unconditional endorsement and, in the election that followed, he received more votes on the Democratic line than his Republican opponent, Janet DiFiore did, on the Republican line. Unfortunately, he lost because of minor Party endorsements held by his opponent.
This evening, we have a complex issue before us, as Tony Castro, once again, seeks the Democratic nomination for DA. He is being challenged by the present Republican incumbent who seeks the Democratic nomination for her re-election to that Office. Let’s be clear. There is a real distinction between these two candidates.
Tony Castro is the incumbent Democratic nominee, seeking to be the Democratic nominee to run as our Democratic candidate for DA. Ms. DiFiore is the incumbent Republican District Attorney who seeks the Democratic nomination for her re-election.
One must question why the Republican incumbent, who campaigned against our Party’s candidate, is now seeking our Party’s nomination.
When asked, at a Committee meeting, why she is defecting the Republican Party, she responded, “I like the Democratic Party’s values.” And, when asked which of those values she liked, the response was, “I am against the Iraq War.”
The question must be asked, what, in fact, being a Democratic District Attorney, would permit you to do that you can’t do as the present Republican in that office? Is there a Democratic or a Republican method of enforcing our laws and protecting the public interest? Will you be more competent and serve the public interest better now that you are a Democrat? This Office requires a person who is independent from political demands; someone who possesses fair social ideals and humanitarian principles which relate to law and justice.
Or, is the real reason that the incumbent Republican candidate cannot win re-election against a strong Democratic challenger. If it is, it is an admittance of weakness in your ability to serve that Office. We should not allow our Party to be used for political opportunism and self-preservation. Let’s not be enablers to those who seek to entrench themselves in public office. If this is the trend, there will be a public backlash against this. Both political parties must maintain the sanctity of the two-party system which is basic to our democratic values.
The facts are, when News Channel 12 ran a poll as to who should be Westchester District Attorney, Tony Castro received 55 percent. Dan Schorr received 27 percent. And Janet DiFiore received 18 percent. From this poll, and his two campaigns, we know that there is strong public support
for Tony’s candidacy.
Most of us in this room know Tony Castro. We have seen him and supported him through two elections. He is the prime example of the American Dream. He is the son of immigrant parents, who worked his way through Harvard University. His whole life has been one of public service, having served for 14 years, with distinction, as an Assistant District Attorney. He is committed to public service and will champion the cause of virtue over vice. Finally, allow me to say this. In over 100 years, a Democrat has never been elected to this office. With Tony Castro, we now have an opportunity to elect a life-long Democrat. Let this be an opportunity to elect a true Democrat to be our next DA, for he will enrich the Office with new, dynamic leadership that is so sorely needed.
It is with great pleasure that I place the name of Tony Castro as our Party’s nominee for the next District Attorney of this great County.
The Westchester Democratic Convention
Tony Castro’s Address Before The
Westchester Democratic Convention
Dr. Martin Luther King said, “Law and order exist for the purpose of establishing justice; and, when they fail in this purpose, they become the dangerously structured dams that block the flow of social progress.” Two generations ago, New York Democrats were instrumental in waging and winning a battle for the soul of our Party as we embraced Dr. King’s non-violent crusade for justice as our own.
Just last November, New York Democrats proudly took part in an historic election of change, and promise, when we elected a President of the United States who is as much a son of Kenya as he is of Kansas. But the battle goes on. Today, here in Westchester County, victims of violence at the hands of a few law enforcement officials, are prosecuted by our District Attorney despite public and overwhelming evidence that they have done nothing wrong.
One man was held incommunicado and denied access to his attorney and family for four days. I know, because I was his attorney. In two recent cases, the United States Department of Justice has had to step in and prosecute because our District Attorney charged the victim instead of the offender.
I am a candidate for District Attorney this year, not out of any sense of entitlement as a former candidate. I run because, in this election, I am the better candidate, the better Democrat, and I will be the better District Attorney. Many of you know me as a life-long Democrat who fights the good fight and remains true to the values that define us as Democrats; an uncompromising, unwavering commitment to the civil liberties and rights of all, regardless of economic or social status.
That is the kind of District Attorney Westchester deserves, and that is the kind of District Attorney I will be. Our representations of justice show her blindfolded so that she may weigh, in the scales she holds, the fate of the accused before her, without regard to who that individual may be. In the United States, we are all equal before the law and, as District Attorney, I will make sure that is the practice here in Westchester County again.
Now, I know change is hard. It’s easier to embrace the status quo, to go with the conventional wisdom, to stick with the incumbent even when she just joined our Party. Senator Obama had a good gig going in Washington. It’s nice to be a United States Senator. It’s hard spending weeks in the frozen fields of Iowa convincing Iowa Democrats, sometimes one at a time, that you are the right instrument of the change that America needs.
So, tonight, in asking you to do the right thing for Westchester, and for our Party, I am asking you to do something hard. I am asking you to send a message to the power brokers who put this deal together, and to say “No”, a three-time Republican is not the future of the Democratic Party here in Westchester. And, “No”, we embrace a different vision of justice for our home towns.
It may well be easier to send this message in the privacy of a voting booth in September. But I ask you tonight to join my cause because it is the right thing, not the easy thing, to do. How important is this cause? Dr. King taught us, “Injustice anywhere is a threat to justice everywhere.” Westchester deserves a better administration of justice than it has. And, as the Majority Party, it is our obligation to see to it.
Fellow Democrats, I ask for your support, and with it, I promise to return law enforcement to its true purpose, the establishment of justice. Thank you, ladies and gentlemen, and God bless the United States of America, and our President.
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