Appeals Court Has Biting Words for Vance’s Office

By a 4-1 majority, an appeals panel in Manhattan had some stinging words for the Manhattan District Attorney’s Office in a complex set of opinions which slashed the sentences of two men convicted of falsifying concrete test results at major New York City construction projects.

The panel reduced the minimum sentence that V. Reddy Kancharla, the owner of Testwell Laboratories, must serve in prison to 16 months from seven years. Likewise, Vincent Barone, the company’s head of engineering, had his minimum sentence reduced to 16 months from five years.

In reversing the two men’s conviction for enterprise corruption in an opinion written by Justice James M. Catterson, four judges characterized the prosecution’s case as based upon “pure conjecture bolstered by empty rhetoric.”

Catterson also chastised the office for making “significant misrepresentations of the record” in its brief and at oral argument as it sought “to sidestep the absence of proof on the criminal enterprise issue.”

Both men were convicted of manipulating data that skewed test results for concrete used at major New York City projects such as the construction of Yankee Stadium, the Freedom Tower, the Second Avenue subway line and Jet Blue facilities at JFK Airport. In all, the city ended up retesting concrete used in more than 100 projects over a decade.

Kancharla twice attempted suicide.

The decision, which was dated Dec. 27, was the last of Catterson’s judicial career. In November, Catterson, a Republican from Suffolk County, was defeated in his bid for a second 14-year term. For the last eight years he had served as a justice in the First Department. The decision has not been reported in the press other than a brief article on Dec. 28 in the New York Daily News.

Coincidentally, two weeks before the First Department handed down its decision, the head of the company that the Metropolitan Transportation Authority selected to replace Testwell after it got into trouble, also pled guilty to enterprise corruption for faking its concrete test results.

The plea, entered on Dec. 14 by American Standard Testing and Consulting Laboratories and its president, Alan Fortich, admitted skewing results at such mainstays of New York City’s infrastructure as the Lincoln Tunnel and the Port Authority Bus Terminal. Fortich faces a maximum sentence of 8 1/3 to 25 years in prison on the enterprise corruption count.

Complex Set of Opinions

The two sentence reductions in the Testwell case were the product of a complex weave of three opinions: a unanimous unsigned opinion approving the sentence reduction; a 4-1 opinion written by Catterson, dissenting in part and concurring in part and a 4-1 opinion written by Justice Sallie Manzanet-Daniels, also dissenting in part and concurring in part. Catterson and Manzanet-Daniels each dissented from part of the other’s opinion. The other members of the panel were Justices Rosalyn H. Richter, Sheila Abdus-Salaam and Nelson Roman. Click here to read the opinions.

Catterson wrote the key opinion in which the court voted, 4-1, to overturn Kancharla and Barone’s convictions for enterprise corruption as being against the weight of the evidence. Enterprise corruption was the top count in the indictment against the two men. “Simply put,” Catterson wrote, “the People failed to introduce any evidence of a leadership structure, overall planning of the criminal enterprise, or any communications between Kancharla, Barone and any of the Testwell employees in furtherance of the criminal enterprise.”

The Catterson opinion nonetheless left in place Kancharla’s sentence of 7 to 21 years and Barone’s of 5 1/3 to 16 years. That result occurred because that the trial judge, Acting Justice Edward J. McLaughlin, imposed consecutive sentence up the two men based upon their conviction upon lesser (14 counts in Kancharla’s case and nine in Barone’s).

The consecutive sentences for the two men on the lesser counts was identical to the sentences McLaughlin imposed upon them solely for enterprise corruption conviction. The net result was that even with the reversal of their convictions for enterprise corruption, their sentences would have remained the same had the court not taken further action.

It did.

In the unsigned opinion, all five justices agreed that McLaughlin’s stacking the sentences for the lesser charges was “strikingly disproportionate” to the treatment accorded a defendant who cooperated with the prosecution. The panel then, “in the interest of justice,” reset the two men’s terms at 16 months to four years. Both men have been free on bail pending the appeal.

Catterson would have dismissed all the lesser counts as well, but Manzanet-Daniels commanded a 4-1 majority in the part of her opinion which concluded that the lesser counts should remain in the case.

Paul Shechtman, now with Spaeder Zuckerman, represented Kancharla, and Andrew M. Lankler of Lankler & Carragher represented Barone. Assistant District Attorney Amyjane Rettew handled the appeal for the prosecution.

©DanielJWise2012

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