Barb from the bench

Judge Stephen C. Robinson has earned a reputation during his five and a half years on the bench at the Brieant Courthouse for a wit that is as sharp as it is quick.

Lawyers appearing before the judge have come to expect the judge’s quips — though to be fair Robinson is at least as likely to jab himself as anyone else. Usually, his able courtroom deputy Brandon Skolnik is his foil.

Today, though, it was defense lawyer Seth Ginsberg who was the target. Ginsberg, along with his co-counsel Charles Carnesi, has confounded federal prosecutors repeatedly in their efforts to nail alleged Gambino Crime Family scion John Gotti Jr. by battling them to a standoff at several trials. He was in White Plains today representing Renata Kuehl, a Patterson woman convicted of bank fraud who stood for sentencing.

Robinson greeted the prosecution team by name and turned to do the same with the defense table. After saying hello to Mr. Ginsberg and Mr. Carnesi, he said good morning to Ms. Ginsberg, mistakenly identifying the defendant before correcting himself.

“That’s my wife,” Ginsberg said, joking about the Mrs. Ginsberg reference.

Without missing a beat, the judge replied:

“She may need to be committed, not sentenced.”

For Schorr: Ari in Scarsdale

Dan Schorr is touting the endorsement of a prominent Westchester County Republican in his bid to unseat District Attorney Janet DiFiore. 

Starting at 7 p.m. tonight, Schorr supporters Ron and Marcy Vinder of Scarsdale are hosting a fundraising party featuring former White House Press Secretary Ari Fleischer as the big draw. It’s a private party, and those invited better get ready to shell out some cash: it’s $200 to get in the door and $500 for a “photo opportunity” with Ari and Dan.

I can’t wait for the campaign finance numbers to come out in this race.

Photo courtesy of nlostrategies.com

Judge Bellantoni and curious timing

As you first read here on Completely Legal, Westchester County Judge Rory Bellantoni is resigning from the bench as of June 8. Bellantoni handed in his resignation letter, I’m told, one day after he was harshly criticized by an upstate judge over his controversial ruling that allowed Richard DiGuglielmo of Dobbs Ferry to be released from prison 10 years after his murder conviction for fatally shooting a man outside of his family’s deli.

State Supreme Court Justice Patrick J. McGrath was dealing with a Rensselaer County killer who was using Bellantoni’s decision on the DiGuglielmo case to get his conviction overturned. The killer argued that, like DiGuglielmo, he couldn’t be guilty of depraved indifference murder because, in fact, he intentionally killed someone. The law was changed a few years ago to ban prosecutors from charging someone with intentional murder AND depraved-indifference murder, and the Rensselaer killer wanted the law to be applied retroactively as it was for DiGuglielmo, saying there was insufficient evidence to uphold his depraved indifference conviction.

McGrath noted that judges in Federal Court and State Appellate Court denied DiGuglielmo’s appeals. He also noted that in 2004, another state judge ruled that it was improper to challenge trial evidence after the jury handed down its verdict and denied DiGuglielmo’s 440 motion, which challenges deparaved indifference murder convictions based on intentional versus reckless conduct.

McGrath blasted Bellantoni, saying his decision to grant DiGuglielmo’s 440 motion “is without basis under New York law.” He went on to say this:

“Judge Bellantoni ignored the mandatory denial requirements … in granting the defendant’s 440 Motion. Judge Bellantoni was required by statute and precedent to deny the defendant’s second 440 motion in spite of how unjust it may have seemed to him.”

“A judge should follow the law, not create it,” McGrath concluded, and denied the Rensselaer killer’s appeal.

By granting the 440 motion, Bellantoni allowed a hearing to take place, where a witness recanted his testimony that DiGuglielmo’s father was in imminent danger by Charles Campbell, which DiGuglielmo, an off-duty NYPD officer, said promoted him to shoot and kill the man he thought was going to beat his father to death with a baseball bat. The witness said he felt that Dobbs Ferry police pressured him to change his story in 1997 to make DiGuglielmo seem more guilty. Based on that, Bellantoni threw out the 1998 conviction last year, and DiGuglielmo remains a free man today.

An appeal of Bellantoni’s decision is now before the Appellate Court. A hearing date has not yet been set.

Sepe trial: Verdict aftermath

It only took the jury a couple of hours to decide that 54-year-old Cortlandt businessman Robert Sepe Sr. intentionally murdered his fiancee, Janette Carlucci, when he hit her a dozen of more times with a metal baseball bat in the home they shared. But the collateral damage that a killing causes lasts so much longer.

Some post-verdict thoughts:

Sepe’s face was a total blank when the jury forewoman said “guilty” when asked for the panel’s decision on the charge of second-degree murder. His three children also showed little emotion, other than maybe mild surprise. As Sepe was led out of the courtroom in handcuffs, he stared wide-eyed at his oldest son, Robert Jr., who was sitting with his siblings in the front row. I was sitting behind them, so I wasn’t able to tell what, if any reaction they gave their dad.

On the other side of the courtroom, the victim’s ex-husband, Anthony Carlucci, could barely hold in his emotion at the guilty verdict. He clasped his hands and with a tight smile, put his arm around his ex mother-in-law as other members of the family wept openly. Carlucci has been a ROCK for his ex-wife’s family, especially his teenaged daughter, Candice, who sat through the entire trial and managed to keep it together the entire time.

Speaking of Candice, not only will she be going to college (Penn State) in the fall, she’ll be going to her prom today. Her dad was saying how these touchstone moments — the prom, first day of college, etc. — will be, at best, bittersweet because her mom, who was just 41 when she was killed, won’t be there to share them with her. This is the collateral damage I’m talking about, and it’s a life sentence for all involved.

Simoes deliberations

Judge Kenneth Karas just resolved a lengthy debate about a jury note that asked if the panel had to find Wayne Simoes acted with a “bad or evil purpose” in the incident with Irma Marquez in order to find he willfully deprived her of her constitutional rights.

The judge told the jury that, yes, they had to find that he did. But the judge defined “bad or evil purpose” as an “intent to do something the law forbids.” Simoes’ lawyer, Andrew Quinn, wanted the judge to say “yes” and leave it tha. The prosecution asked him to define the bad and evil term – which is an actual legal phrase – for the jury. The judge agreed, saying to not define it might lead jurors to interpret it on their own.

The issue took about an hour to resolve – the jury sent out its note at 1 p.m. – because it’s connected to a central element in the charge. The jury has to find that Simoes intentionally deprived Marquez of her rights when he allegedly slammed her to he floor of La Fonda Restaurant. They also have to find that he acted under color of law and Marquez suffered injuries. There’s little debate over those two. It’s a given that Simoes was on duty as a Yonkers police officer on March 3, 2007, when he encountered Marquez at the restaurant when he and other cops responded to a report of a woman injured in a barroom brawl. There’s also no debate that Marquez suffered a broken jaw when she hit the ground at the restaurant. The jury also has o find that Simoes’ use of force against Marquez was unreasonable.

The jury has notified the judge that they intend to stay until 4 p.m. if necessary. If they don’t reach a verdict by then jurors will be back tomorrow at 9:30 a.m.

The deliberations begin

The jury in the Simoes trial got the case at 10:37, a little more than 20 minutes ago. The jury is scheduled to deliberate until at least 2 p.m. — unless, obviously, the 12-member panel reaches a verdict before then. The jury will let Judge Kenneth Karas know if it wants to go past 2 p.m. That’s been the cut off for testimony throughout the trial, a pattern that appears to be becoming the norm for trials at the Brieant courthouse: Start early, take fewer breaks, finish early.

There’s only one charge in he indictment. Yonkers police officer Wayne Simoes is accused of violating Irma Marquez’s civil rights. That combined with a short trial, just six days, leads some courthouse observers to speculate that a verdict is likely today. But you just can’t predict juries. Everyone dug in for a long haul during the recent Mount Vernon corruption trial. The jury got the case after a month of testimony, more than 20 witnesses and thousands of documents. The jury was out for only three hours before finding former city Planning Commissioner Constance “Gerri” Post and her businessman boyfriend, Wayne Charles, guilty of fraud and public corruption charges.

She oughta know

As Judge Kenneth Karas stood behind the bench in his crowded courtroom this morning, waiting for the jury to enter, he gauged the temperature in the room.

“Is it warm in here?” he asked.

One courtroom observer, sitting in the third row, answered immediately.

“Always,” she said.

She should know. The expert on the climate in Courtroom 521 was Judge Colleen McMahon. That was her courtroom for nine years before she transferred down to Manhattan, where she currently is stationed. McMahon was back in White Plains today because she’s handling some criminal cases to ease the burden on judges Karas and Robinson. The third full-time district judge in the building, Cathy Seibel, still can’t take on a full criminal case load because many of the cases being indicted are the result of investigations that began while she was a top lieutenant of then U.S. Attorney Michael Garcia.

Ouch

There have been few days as busy as Thursday in the Brieant courthouse. Two criminal trials plus the”open for business” sign on the bankruptcy trustee’s office would have made the courthouse standing room only on any day.

But you toss in the Newburgh alleged jihadists’ presentments and the accompanying tsunami of media descending on the courthouse and you have one for the books.

The bustle and high-profile case were enough for Susanne Brody, the sharp-tongued chief of the Federal Defenders Office, to point out that most days I’m lurking around the courthouse, there’s nothing so intense going on.

“Well, look at you,” she said as we met on our way into the accused would-be terrorists’ hearing. “I guess even a blind chipmunk finds a nut once in a while.”

Simoesus Interruptus

OK, it’s not a legal term. But it should be after yesterday.

With all the activity surrounding the breaking terrorism case in the Brieant Courthouse yesterday, I was only able to pop in and out of the Wayne Simoes trial for a few minutes. Here’s what I caught: The prosecution rested after finishing up with Yonkers cop Todd Mendelson. Interestingly, Mendelson did not draw the same glares from some of the assembled throng of Yonkers cops that his partner John Liberatore did after he testified for the prosecution earlier this week.

Mendelson testified that he did not see Simoes throw Marquez to the ground of the restaurant and that Simoes seemed shaken up aftter the incident. But he also testified he didn’t see Simoes’ foot slip as the defense contends happened when he grabbed Irma Marquez inside La Fonda Restaurant. He said Marquez was loud and intoxicated but not a threat. He said he was too close to Simoes and Marquez to actually see what happened. But he said he saw no reason to take her to to the ground.

That was yesterday. Today, Simoes’ side called its video expert, the owner of La Fonda Restaurant, and a Yonkers emergency services cop.

Interestingly, the defense didn’t cross-examine either Julian Santos, the bar owner, or Chris Kowatch, the ESU cop. 

And Judge Kenneth Karas said he was expecting an objection from the prosecution when defense lawyer Andrew Quinn asked video expert Grant Fredericks if he thought Simoes threw or dropped Marquez. Fredericks said he dropped her. Prior to the trial, Karas had ruled that Fredericks wouldn’t be allowed to offer his interpretation of that, just what was happening in each of the 199 frames from the video of the incident .

But the prosecution didn’t object when Quinn asked Fredericks that question. Karas said after the jury left the room today that he expected an objection from the prosecution team of Anna Skotko, Cynthia Dunne, and Benjamin Torrance. But none came. Quinn said he asked because he felt the prosecution had opened the door with its cross-examination of Fredericks. The judge didn’t think so.

“I don’t know why you didn’t object,” the judge said to Skotko.

“It came out of left field,” Skotko said.

Sepe sadness

Covering the Robert Sepe murder trial this week has been like going to a six-hour funeral every day, watching two families choke back tears and try to console each other as they hear about what preceded the horribly violent death of Janette Carlucci.

Today was particularly tough. Sepe, 54, himself took the stand and talked about the night he beat Carlucci to death with a baseball bat that he kept under his bed of the Cortlandt home they shared. When he got to the part where he hit her for the first time, Carlucci’s mother ran out of the courtroom, crying. Sepe’s three kids looked anguished. Other members of Carlucci’s family were shaking as they wiped away tears. Carlucci’s ex-husband put his arm around his teenage daughter, Candice, as she watched the man who killed her 41-year-old mom say “it was all so surreal.”

There’s more to come this afternoon, when Westchester prosecutor Timothy Ward finishes his cross examination of Sepe. We’ll hear next from the defense’s psychiatric expert who will support the theory that Sepe was he was “extremely emotionally disturbed” when he bludgeoned his fiancee until she was unrecognizable. If the jury believes him, he’ll be convicted of manslaughter rather than murder and likely get 15 years to life rather than 25 to life in prison.