Ex New York Comptroller Alan Hevesi shouldn’t be sentenced by the judge who accepted his guilty plea for corruption involving the state pension fund because of a conflict of interest, Hevesi’s lawyer said in court.
State Supreme Court Justice Lewis Bart Stone in Manhattan is a trustee for the estranged father of Hevesi’s lawyer, Bradley Simon, according to a transcript of a March 1 court hearing. The disclosure came in court after Simon asked about Stone’s relationship with the father. The judge told Simon he wasn’t a beneficiary of his father’s trusts.
Simon said he believed Stone’s involvement with his family’s affairs means the judge should step down from Hevesi’s case, according to the transcript. Simon said he would pursue every remedy to keep Stone from sentencing Hevesi.
“I am quite frankly in shock that I’m listening for the first time that you’re a trustee of my estranged father and have never disclosed this matter in this proceeding,” Simon said. “I think the ethical quagmire is overwhelming.”
“Uh huh,” the judge replied, according to the transcript.
Hevesi pleaded guilty before Stone in October to approving pension fund investments in exchange for almost $1 million. He is the highest-ranking official convicted in a three-year investigation by ex-state Attorney General Andrew Cuomo, now the governor. Hevesi may be sentenced to as little as no time in prison or from a year and four months to four years.
Stone postponed the sentencing hearing from March 10 to March 28. The judge said that if he decides to withdraw, the sentencing will be assigned to another judge.
On Oct. 6, the day before Hevesi pleaded guilty, the judge made a sealed statement about the relationship in the court record, the judge said.
In the statement, made public today, Stone said the record was to “address this court’s self-consideration of potential conflict issues in the case.'' He created the record under seal “to avoid disclosing to Bradley Simon that his parents had excluded him from their estate,” he said.
Stone said that, in addition to being a trustee for Simon’s parents, he was an executor of their wills, according to a transcript.
“I’m not a fiduciary to you, and the fact that I have a relationship with your father does not mean that I have a difficulty with Mr. Hevesi,” the judge told Simon at the March 1 hearing.
When Stone mentioned a “a possible judge-shopping attempt,” Simon objected to that characterization of his motive, according to the transcript.
David Bookstaver, a spokesman for the state court system, said in an interview today that “the transcripts speak for themselves” and whether Stone will withdraw “is still up in the air.”
Ellen Biben, the state’s inspector general who’s handling the case for the attorney general’s office, said in court she doesn’t believe “a relationship with a lawyer’s father creates even the appearance of a problem” for the judge. She said she saw no legal requirement for disqualification.
Bennett L. Gershman, a law professor at Pace University who specializes in prosecutorial and judicial ethics, said in an interview that he doesn’t think the conflict called for Stone to disqualify himself.
“But he should have disclosed this publicly on the record at the time when Hevesi first came before this judge with Simon,” Gershman said.
Stephen Gillers, a legal ethics expert at New York University School of Law, also questioned Stone’s handling of the matter.
“The most disturbing thing about this whole story is the judge’s behavior,” Gillers said in an interview. “First, it was imprudent not to reveal his status as trustee. The second thing that’s strange is the creation of a record that only he knows about.”
Hevesi, who resigned in 2006, said he gave preferential treatment to Markstone Capital Partners, approving $250 million in pension fund investments in exchange for almost $1 million in gifts, including $75,000 in travel expenses, $380,000 in sham consulting fees for a lobbyist and more than $500,000 in campaign contributions.
Hevesi’s former political consultant, Henry “Hank” Morris, who pleaded guilty to a securities fraud was sentenced last month to a year and four months to four years in prison. Morris was the first of about eight defendants to be sentenced in the probe.
In addition to the criminal cases, at least six people and 21 firms settled with Cuomo, paying about $170 million to the state and the pension fund.
About $5 billion of the fund’s $9.5 billion in alternative investments from 2003 to 2007 were tainted by kickbacks, according to the U.S. Securities and Exchange Commission, which also investigated.
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