Friday, June 26, 2009

The Flacks Report [19+ June 2009]

Nora Anderson Up-date---9th Civil Court Panel Report (rev.)---Robert J. Healy---Gov.'s Jud. Screening Panel Names Massaro---3rd District Screening Panel---App. Div.'s Decides Judicial Compensation Case---Oing Promoted---Albany Follies---Landis Withdraws---Dems Form Sup. Ct. Screening Panel---A Journalist Breaks Through City Hall's "Blue Wall of Silence"

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Nora Anderson Up-Date

Here is an up-date on New York County Surrogate Nora Anderson. It is difficult to encapsulate in just a few paragraphs all the allegations of and responses to the ten-count indictment brought by D.A. Morgenthau against Surrogate Nora Anderson (and her former boss Seth Rubenstein). Some say it was a selective prosecution and politically motivated because Morgey at the time was running for re-election, and he was concerned that Leslie Crocker-Snyder would make an issue of Anderson if Morgey did nothing. Some say the charges are weak and will not stand, while others have already “convicted” her.

The D.A. paints an illegal scenario: Anderson is alleged to have filed false instruments with regard to her campaign last year, instruments which either are or aren’t “business records,” and engaged in financial transactions to get around campaign contribution limits, while asserting the money given as a gift was hers to use in her campaign.

Defendants made an omnibus pre-trial motion to dismiss arguing that there is nothing illegal, there is no proof, there is no criminal intent or knowledge, and there is no “injured forum” or effect on or harm to the citizens of New York County. Further that the court lacks jurisdiction because the indictment was brought in the wrong venue (relying on Stanley Steingut et al. vs. Eugene Gold et al., 42 NY 2nd 311). As the transactions did not occur in New York County, Morgenthau cannot bring an indictment [Should the Kings County D.A. extradite Nora from Manhattan?]. Also that some of the counts are defectively pleaded in that they are duplicitous in alleging more than one crime in a count. [On March 26th of this year, the Court of Appeals ruled in People vs. Bauman that there is to be strict compliance with CPL 200.30—each count of an indictment must charge only one offense.]

The District Attorney’s response is basically that there is sufficient evidence, the counts are not “duplicitous,” and that New York County was “harmed.”

On Friday, 22nd May, 2009, trial judge Michael Obus heard two and a half hours of oral argument (mostly iterating the points in the moving and answering papers) on the defendants' omnibus motion to dismiss the indictments. The Asst. D.A. didn't appear effective, sometimes arguing hypotheticals. Justice Obus was alert, patient, courteous, let everyone have their say, and asked questions which indicated that he read the papers beforehand. Of the 23 people in the courtroom, not one (save your correspondent) was a news reporter, which is strange considering the extensive coverage the media had given this.

A few notes from the oral argument. Defendants assert that the People are reaching to place the Election Law conduct within a criminal context, and that the charges are defectively pleaded. There was no conspiracy, and the claim that the citizens of New York County were hurt isn’t so because what is dispositive is that conduct in one county has no effect on another county (where there are separately elected Surrogates); that is, the county of the election is not determinative. So, who really are the victims here? Are the Board of Elections filings business records within the commonly accepted legal definition of that term? What is the definition of “contribution” since there is no legal requirement to state the source of contributions? This case should not have been brought, but referred to the State Board of Elections.

The People say that each defendant aided and abetted each other. There was an over-all conspiracy to install Nora Anderson as Surrogate and a sub-conspiracy of alleged falsified filings. The prosecution relies on the Clarence Norman case. As to the Steingut decision, that dealt with a City Council-at-Large seat. The A.D.A. kept referring to the newspaper stories [are they in evidence? – Ed.].

The judge commented that the campaign treasurer was not to be blamed for the filings, and there is no need to bring in the county wherein the acts were done; that the citizens at large may have been “defrauded.” He referred to the Steingut case as an “amorphous” result.

The issues are complex, involving both technical points and interpretations of the campaign finance and election laws as well as a jurisdictional issue. The judge, who has two law clerks working on this case with him, will issue his decision on July 31st.

Postscript. On another note, Troy Webber, who is "standing in" for Anderson, has back-tracked, now saying that she may consider running for Surrogate.


Ninth District Civil Court Panel Report (Rev.)

On 18 May 2009, for two vacancies in the 9th Civil Court District (N.Y. County), a local Democratic Party screening panel reported the following six as most highly qualified of the 21 applicants:

James d'Auguste, N.Y.S. Insurance Dept. (liquidation bur.);
Gerald Lebovits, Housing Court Judge;
Jennifer Schecter, law clerk to Eileen Branston;
David Cohen, Housing Court Judge;
William Franc Perry, law clerk to Peter Moulton;
Paul Goetz, Asst. Corp. Counsel (Comml. & R.E. lit. bur.)

In addition, the panel screened for the 6th C.C. District
and found Analisa Torres to merit re-election.

The names of panelists were kept secret by the Lex. Club’s District Leaders for fear of ex parte communications. Panelists were designated by the chiefs of the following organizations.

American Council on Science and Health
Autism Speaks
Asian-American Bar Assn. of N.Y.
N.A.A.C.P. Mid-Manhattan. branch
N.Y. Foundation for Senior Citizens
Columbian Lawyers Assn.
E. Midtown Coalition for Sensible Development
Lesbian & Gay Law Assn. [LEGAL]

The panelists, all lawyers save Fresco, were [but we don't have them "linked" to the various organizations whence they came]: Bill Eakins, Delmas Costin, Donna Marinacci, Jeff Stier, Jeffery Goldman, John Duffy, Judith Fresco, Tracey Walsh, and Umar Sheikh.

James d'Auguste, who has been politically active over the years and played a prominent role in the Lopez Torres case, is the leading candidate, having garnered a number of Dem. club and party official endorsements and many politicians' endorsements (Maloney, Stringer, Duane, Bing, Gottfried, M. Kellner, Farrell, Wright, Garodnick, & Lappin). He will file for Tolub's seat (vacancy #8).

Justice Eileen Branston has a second law clerk move up to the Civil Court as Jennifer Schecter is the leading contender for the Gische seat (vacancy #7). [Branston's former clerk Saliann Scarpulla is now an acting Supreme Court justice.]


Robert J. Healy, R.I.P.

Political maven, gentleman, and raconteur extraordinaire Robert J. Healy died Saturday, 30 May 2009, in Calvary Hospice, The Bronx, from an aggressive malignant brain tumor at age 68. Bob was a friend of many of this City's pols. A graduate of Touro Law School, he had great institutional knowledge on the outer boroughs judiciary. If you wanted to know who the candidates were in the Democratic Primary for Civil Court Judge in the "X" Civil Court District in Kings County in 1990-something, he could tell you. A true gentleman, he generously shared his vast political institutional knowledge. There was no funeral. See newspaper story. Link to:


Governor's Judicial Screening Panel Names Massaro

The Governor's First District Judicial Screening Committee has completed interviewing applicants for the Supreme Court seat vacated by John Stackhouse. It made its report directly to the Governor of the "highly qualified" candidates. The Governor then chooses one, and informs that person. [Those others found "highly qualified" will not be told that they were found "highly qualified"!]

If that person holds a lower court seat, accepting the Supreme Court slot will not qualify him/her as an "incumbent" under the New York County Democratic organization's rules ["The 'Crane' Rule"] because the gubernatorial appointment was not made by the first of June, and thus he/she would be "at risk" of not being chosen at the Party's September judicial nominating convention and therefore runs the risk of being out of a job! Confusing?

Nonetheless, the Governor (or whoever was advising him) offered the "Stackhouse" vacancy appointment to Dominic Massaro, a fine Court of Claims judge from Pelham Manor, N.Y., sitting by designation in The Bronx as an Acting Supreme Court Justice (he has served in both criminal and civil terms). As Massaro reaches the State Constitutional age limit of 70 this year, he may not be considered for election at the 1st District's judicial conventions; therefore making the "Stackhouse" seat an "open" one at this September's Democratic Party judicial nominating convention.

Third District Screening Panel

From the Chelsea/McManus clubs' area (3rd Civil Court Dist.--Manh.), the local screening panel--set up by the Chelsea Reform Democratic Club District Leaders Dormand and Schuler--reported Michael Katz (Barbara Kapnick's law clerk), Lynn Kottler (a solo practitioner and Chelsea Reform Club president), and Wm. Franc Perry (Peter Moulton's law clerk) for Civil Court Judge. The boys dropped out for the girl. Anna Rose Lewis (former law clerk to Judge Laura Drager) is also running and circulating designating petitions. Lewis is also on the McManus Club's petitions.

There were only four panelists, designated by the heads of the following organizations: Hudson Guild, Jewish Lawyers Guild (which is not a law or bar association, but just one big Chanukah party; an organization, by its own policy statement, to advance Jewish principles), Lesbian & Gay Lawyers Assn., and the New York State Trial Lawyers Assn. How did the Trial Lawyers get in that mix? Why weren't there any law school and bar association designees? Why only four panelists? Was Hudson Guild's panelist "tied into" C.R.D.C.? The Trial Lawyer's panelist raised funds for Michael Katz last year. Why did the boys drop out, especially Katz, who has come through two previous panels?

Appellate Division Decides Judicial Compensation Case

“Here, at last, is the First Department's decision in the Larabee case on
compensation. Enjoy but don't make any financial commitments just
yet. It affirms Justice Lehner's decision holding that the Legislature abused its power by depriving the Judiciary of any increase in compensation...etc. Congratulations that we have won a round in this battle, but we are not there yet.” --Joe Forstadt

Judges sued the State last year asserting that the legislature violated the constitutionally-mandated separation of powers by linking judicial and legislative pay increases. The legislature has been doing this for decades, hiding behind judicial robes, so-to-speak, and holding the judges' salaries "hostage."

The Appellate Division, First Dept., unanimously ruled in the judges' favor. "The Legislature, by subordinating the Judiciary to its whims and caprices in the matters of salary adjustments, brings the Judiciary closer to the world of politics than is tolerable for the disinterested functioning of a court system. . . ." and [paraphrasing] politicizing the third branch of government's salary increases and violating the basic tenet of the separation of powers doctrine which promotes and maintains the independence and stability of each branch of government.

The State has 90 days in which to appeal. There are two companion cases, one of which was brought by then Chief Judge Kaye, and all three probably will be consolidated before the Court of Appeals. Assembly Speaker Sheldon Silver said that he is "studying" the [App. Div. 1st] decision!

Oing Promoted

You heard it here first. Civil Court Judge Jeffrey Oing has been named by O.C.A. to be the supervising judge of the New York County Civil Court branch, a position recently held by Martin Shulman who is now in the Appellate Term. Oing will also become an Acting Supreme Court Justice (and draw the higher salary).

On another note, the "stream-lining" of court administration is puzzling. There are no City-wide Criminal Court and Civil Court administrators, although there should be, so that both judicial and non-judicial resources could be allocated where needed among the boroughs of this fair city.

Albany Follies

New York State Legislature's upper house is in turmoil. So, pray tell, where did these characters in the State Senate come from? Central Casting, Central Booking, and Comedy Central.


Landis Withdraws

C.F.D. District Leader Marc Landis is no longer seeking to replace Denny Farrell as County Leader this Fall. Farrell, who already announced that he is not seeking re-election, will likely be replaced by Harlem Assemblymember Keith Wright.

Democratic Party Forms Supreme Court Screening Panel

The New York County Regular Democratic Organization's Judiciary Committee is forming a screening panel for the Supreme Court vacancy created by the resignation of John Stackhouse. Letters requesting a panelist have been sent out to 30 organizations' heads. Matthew Jerome Morris, a senior associate and litigator at Proskauer, Rose, is the panel administrator.

A Journalist Breaks Through City Hall's
"Blue Wall of Silence"

By Gary Tilzer
23 June 2009

If there was any value left in the local Pulitzer or TV news Emmy awards, a journalist who most of his City Hall colleagues try to discredit and humiliate because they feel he is not worthy of their status, should win this year. Rafael Martínez Alequín, long a pariah among the City Hall press corps, did what his colleagues don’t bother to do anymore. He investigated corruption - and in so doing, broke one of the biggest stories of the year.

Last year, Martínez produced a video in which he interviewed several Bronx neighbors of State Senator Pedro Espada, who had never seen Espada in the building before. The excellent video, which shows Espada’s car parked later that night at his real home in Mamaroneck, proves outright that Senator Espada had never lived at the address he listed as his official State Senate residence. An old lady tenant even confronted Espada, who is now second-in-line to be Governor, after his staff member, in an attempt to intimidate her, took a picture of her while Martinez was interviewing her. As a reward for his five-star video did Rafael make the front page of the dailies last year? On the contrary, not one of his City Hall colleagues continued Martínez the investigation to prove Espada did not live in the Bronx.

It is not only the press who is trying to marginalize Martínez. It took Norman Siegel defending Martinez to defeat the Mayor’s attempt to throw Martinez out of City Hall by not renewing his press pass, despite the fact that Martinez has covered City Hall for 30 years. Siegel’s lawsuit has already resulted in Martínez getting a new press pass, and it is still ongoing to win press pass rights for other bloggers. Martínez is still not allow to ask any questions at mayoral press conferences.

A short time after the video was released, Martínez was attacked and threatened when he attempted to ask Espada a questions about his residence and non profit medical heath care organization he funds with government money and runs. Martinez’s camera was broken and he was told that if he continued to investigate Espara he would be put in a body bag by those close to Espada.

Martínez was attacked because Espada’s people knew he was doing the job of a real journalist and the so-called real journalists were of no danger to them. Espada knew that if you’re a member of the ruling class, the mainstream media will protect you. More importantly, Espada knew that he could use his vote to turn the Senate Democratic as not only a shield to avoid negative press stories, but, more importantly, to hold off and stall criminal investigations into his conduct.

It was only after Espada voted with the GOP, putting Sprinkles the Clown in charge of the Senate, that the Bronx DA Robert Johnson started his investigation into Espada’s residence, empanelling a grand jury and subpoenaed Martinez’s Video. Since then, even the society journalists have been calling Martínez, now that they see his work as a real journalist could put Espada behind bars and end the circus that has become the State Senate.

Mr. Martinez, it is time to get back to work and expose why the DAs, the Mayor’s DOI and the FBI are delaying the investigation into the City Council slush fund scandal. We already know, as we witnessed during the Council’s term limits vote, why the city’s establishment has convinced itself that only the reelection of Bloomberg will save the city from financial disaster. Who else can spend millions of dollars on TV commercials convincing the voters he is creating jobs, while the city’s un-employment rate climbs over 9% for the first time in 16 years. You can do this, Rafael. Just remember those journalists who hate you really secretly envy you, because you’re the only real journalist at City Hall.


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