On March 6, just fifteen days ago, J.A.I.L. published a J.A.I.L. News Journal entitled, "Judicial Bribe-Taking, Caught In The Act." Our first sentence stated, "CBS TV has done America a favor by running an expose on the details of Judge Garson taking a bribe on their TV program 48-Hours. Our thanks to CBS."

 

 

 

 

 

 

 

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Prosecutors Argue to Restore Felony Counts Against Garson
Daniel Wise
New York Law Journal
03-21-2005

Questioning was sparse Friday during oral argument at the Appellate
Division, Second Department, of the prosecution's appeal to restore six
felony counts against former Brooklyn Supreme Court Justice Gerald P.
Garson.

During the 45 minute argument, three of the four judges on the panel queried the two prosecutors, Brooklyn Assistant District Attorneys Leonard Joblove and Seth M. Lieberman, about regulatory language that Justice Steven W. Fisher had relied on in dismissing six counts of receiving rewards for misconduct against Mr. Garson.

Only one question � a query that embraced the prosecution's key argument � was posed to Mr. Garson's lawyer, Diarmuid White.

The questioning did not in any way telegraph the judges' views of the case.

The arguments centered on Justice Fisher's ruling last April dismissing the reward counts on the strength of a 1979 decision issued by the Court of Appeals finding that violations of the Code of Judicial Conduct could not serve as a basis for criminal prosecution that a judge had committed official misconduct.

Despite the dismissal, Mr. Garson still faces a bribery count and two other misdemeanors counts stemming from charges that he gave court appointments, ex parte legal advice and preferential treatment to a lawyer who gave him thousands of dollars worth of free drinks and meals, and in one instance a box of expensive cigars. The lawyer, Paul Siminovsky, is cooperating prosecutors.

Five of the six dismissed reward counts related to Mr. Siminovsky's payment of referral fees to Mr. Garson, an alleged violation of a judge's duty under the code � now set forth in Rules of Judicial Conduct promulgated by the court system � not to lend the prestige of the office to advance private interests. The sixth count accuses Mr. Garson of accepting a box of cigars for having given Mr. Siminovsky ex parte advice.

The dismissal of the six counts was a serious blow to prosecutors because it meant they could not present their most graphic evidence as direct proof of a crime. The prosecution has videotapes, recorded in Mr. Garson's robing room, of Mr. Siminovsky giving the judge the box of cigars and $1,000 for having referred clients to him.

The videotapes will almost certainly come into evidence because Justice
Jeffrey G. Berry, who will preside over the trial, allowed them into
evidence at a trial last year of two court workers accused of steering cases to Mr. Garson. But, without a reversal, the tapes will come in as background material and not direct evidence of a crime.

With the referral fee counts out of the case, the prosecution is left with
gifts such as free meals and cigars at the core of its case.

In dismissing the reward counts, Justice Fisher, who has since been
appointed to the Appellate Division, Second Department, relied on the Court of Appeal's 1979 ruling in People v. La Carrubba, 46 NY2d 658. Justice Fisher relied on a statement in the preamble to the Rules on Judicial Conduct that the rules are "not designed or intended" as a basis for "criminal prosecution."

Justices Robert A. Lifson, Fred T. Santucci and Robert A. Spolzino, all
asked the two prosecutors in one fashion or another whether they were not, in fact, seeking to use the rules as a basis for a criminal prosecution.

Mr. Joblove, the chief of the Brooklyn office's appeals bureau responded that a "plain reading" of the statute made it clear that a violation of the conduct rules was the type of infraction legislators had in mind when they defined a public servant's violation of a duty as the crime of official misconduct.

The current statute is more broadly worded than the official misconduct
statute was in 1979 when La Carrubba was decided, Mr. Joblove noted. The statute now proscribes a public servant's violation of any duty, not just one that is "inherent in the nature" of the official's office.

Mr. Lieberman, the Brooklyn office's senior appellate lawyer, argued that barring the prosecution of offenses under the judicial rules would lead to an "absurd" result. Judges could be prosecuted for the crime of receiving unlawful gratuities for actions they are supposed to take, he pointed out, but not for receiving rewards for performing acts that they were prohibited from taking.

Similarly, Mr. Lieberman contended, a non-judge could be prosecuted for giving a judge such a reward, while the judge could not.

The one question posed to Mr. White came from Justice Spolzino who asked why the prosecution's view of the rewards statute � that a violation of the conduct rules was precisely the sort of dereliction the statute was designed to encompass � was not correct.

Mr. White said he would agree with Justice Spolzino were judges not
involved. The only forum in which judges may be disciplined for violating the conduct rules, he said, is the state Commission on Judicial Conduct. The state Constitution and the Court's ruling in La Carrubba make that clear, he argued, in order to preserve judicial independence.

Arrested in 2003

Mr. Garson was arrested in April 2003 and indicted on six felony counts of receiving rewards for official misconduct. The crime of receiving a reward for official misconduct is a Class E felony carrying a maximum sentence of 1-1/3 to 4 years in prison.

In August 2003, Brooklyn prosecutors obtained a superseding indictment adding the more serious charge of bribe receiving in the third degree, a Class D felony with a top penalty of 2-1/3 to 7 years.

Justice Fisher in People v. Garson, 4 Misc. 3d 258, rejected the
prosecution's attempts to distinguish Mr. Garson's case from the precedent set by the Court of Appeals in La Carrubba.

The Brooklyn office had argued that while La Carrubba was pending the state Constitution had been amended to explicitly subject judges to "rules of conduct" issued by the court system. The court system subsequently promulgated rules based on the judicial code which at that time was written by the New York State Bar Association.

The court system rules, unlike those in the code, the prosecution noted,
were mandatory, rather than aspirational. The prosecution also stressed that La Carrubba involved a misdemeanor charge of official misconduct rather than the more serious charge of receiving a reward for misconduct.

In La Carrubba, the Court overturned the conviction of a Suffolk County judge who had dismissed a traffic violation issued to a friend.

Mr. Garson resigned from the bench at the end of last year. Had he not
resigned he would have been required to be certified by the Office of Court Administration to serve another two years. Mr. Garson, 72, like all Supreme Court justices 70 or older, had to be certified every two years to remain on the bench until he turns 76.

Mr. Siminovsky has pleaded guilty to the misdemeanor charge of giving
unlawful gratuities and prosecutors have agreed to recommend that he not be sentenced to jail as long as he testifies as he has promised to. Mr.
Siminovsky has taken steps to give up his admission to the bar and amended his cooperation agreement to pledge that he will never seek reinstatement.

� Daniel Wise can be reached at [email protected].