Breaking News: Court of Appeals Gives Friedman Another Shot

As WiseLawNY predicted after oral argument on Oct. 18, the New York Court of Appeals today ruled that Jesse Friedman, who served 13 years in prison for molesting pre-adolescent boys attending an after-school computer class in his home should be given another chance to get prosecution records under New York’s Freedom of Information Law (FOIL) in his quest to establish his innocence.

In a 5-2 decision written by Judge Jenny Rivera, the Court ruled that the Second Department had applied the wrong standard in ruling that prosecution records were not required to be disclosed under New York’s FOIL.

Rivera found that the standard applied by the Second Department was out of line with the test used in the other three departments of the Appellate Division as well as the test employed in the federal Freedom of Information Act (FOIA).

The rejected Second Department test had barred the disclosure of any information from prosecution files in cases that do not go to trial. The other three departments require the release of information from prosecution files under FOIL unless there is an express or implied promise that the information will remain confidential.

The court remanded that the matter to the trial court to determine which documents could be withheld on the basis of an express or applied promise of confidentiality.

The trial judge, Justice F. Dana Winslow, had ruled in 2013 that “every scrap of paper” in the prosecution’s file should be turned over to Friedman because the prosecution had failed to turnover to the defense massive amounts of materials that might have aided Friedman in making his decision in 1988 whether to plea guilty.

Winslow, however, retired from the bench at the end of 2015.

In dissent, Justice Gerald Whalen, who sat by designation from the Third Department, proposed a much more searching inquiry in cases, “involving sensitive matters such as alleged sexual offenses committed against children.” Judge Michael Garcia joined the dissent.

Friedman’s lawsuit to establish his innocence is pending before a second Nassau County Supreme justice, Terrence P. Murphy, but that case has been on hold as the appeal winded it way to today’s (Nov. 21) ruling. Murphy will presumably have to sift through the documents in the prosecution’s file to determine which ones are protected from disclosure by an express or implied promise of confidentiality.

©DanielJWise2017

 

 

 

 

 

 

 

 

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Friedman Gets Good Vibes at Court of Appeals

In the 16 years since Jesse Friedman, the subject of an Oscar-nominated documentary, was released from prison in 2001, he has sought—largely without success—to clear his name of sexually abusing young boys who took after-school computer lessons in his home.

But, Wednesday, he must have enjoyed a rare moment of hope as four of seven judges on New York’s Court of Appeals sent clear signals that they were likely to revive his quest to get access to the records compiled by the Nassau County District Attorney’s Office prior to his guilty plea in 1988.

His path forward still appears clouded, however, since the entire panel struggled with question of how his claim for the records should be assessed, should they decide — as seems likely — that the Brooklyn-based Appellate Division, Second Department erred in throwing his case out of court.

Friedman is seeking to use New York’s Freedom of Information Law (FOIL) to obtain the prosecution records he needs to prove his claim that he is actually innocent of the sex crimes he pleaded guilty to. That is a tall order.

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Sater Wins $70 Million Tax Fraud Suit

Felix Sater, who is in the crosshairs of Special Prosecutor Robert Mueller, dodged a bullet on Wednesday when State Supreme Court Justice Charles E. Ramos booted a $70 million tax fraud case brought by his two longtime foes, New York lawyers Frederick Oberlander and Richard E. Lerner. The case had been brought as a private action under NY law, which authorizes a private citizen to sue to recover funds owed to the state and to retain a portion of any recovery (NY Fin. Law Sect. 187 et seq.)

My story was published on the WhoWhatWhy.org Blog. Here’s the link: /whowhatwhy.org/2017/09/28/key-figure-trump-russia-saga-dodges-legal-bullet/.

 

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Judge Makes Unfounded Accusation against Lawyers in Sater-Connected Case

Due to an  error on my part, a paragraph was dropped from the original version of this article,  which contained my disclosure that I am one of 13 amici, who have filed an amicus brief supporting the motion for disclosure of the Sater documents remaining under seal at the Second Circuit. I apologize for this oversight and have restored the omitted paragraph highlighted in GREEN  in this updated version of the story.

 

 

Eastern District U.S. Judge Pamela K. Chen made a very serious error in a report she prepared for the U.S. Court of Appeals in a case involving Felix Sater, a figure who stands at ground zero of Special Prosecutor Robert Mueller’s investigation of collusion between the Trump campaign and Russian efforts to undermine the 2016 Presidential election.

She erroneously accused two lawyers, who have been subject to gag orders issued by Eastern District Judge I. Leo Glasser in 2010 and the Second Circuit itself in 2012, of “knowing contravention” of a Second Circuit order requiring that any certiorari from the two lawyers to challenge the Second Circuit’s order “ be filed under seal.”

A review of the papers filed by the two lawyers with the Supreme Court and the Court’s docket in the matter reveals that accusation is incorrect.

The two lawyers are Frederick Oberlander, who disclosed sealed records from Sater’s criminal file in the Eastern District of New York and his lawyer, Richard Lerner, who is the son of former presiding justice of the Appellate Division, First Department, Alfred Lerner.

Oberlander drew the ire of Glasser and the Second Circuit when he used information from Sater’s sealed criminal file in a lawsuit brought in 2010 to accuse Sater of using the cover of his sealed record to perpetuate a fraud that dwarfed the one that led to his guilty plea and subsequent cooperation.

Sater’s 1998 guilty plea was to crimes arising from a $40 million pump-and-dump stock scheme. In his 2010 lawsuit, Oberlander accused Sater of involvement in a $400 million real-estate fraud in projects involving now President Donald Trump.

A review of the Supreme Court’s docket in connection with Oberlander’s cert petition reveals that on May 10, 2012 Oberlander filed a cert petition in tandem with a motion “for leave to file a petition for a writ of certiorari under seal with redacted copies for the public record.”

Approximately six weeks later (on June 25), the Court granted their motion to file redacted copies of the brief for certiorari, with leave to do so within 30 days. In an entry dated July 13, 2012 the docket states, “Petitioners complied with the order of June 25.” Read the Oberlander cert petition.

To dispel any doubt about that sequence of events, the Supreme Court’s clerk’s office affixed a date stamp of May 10, 2012 in the upper right hand corner of the motion for certiorari and added in a legend in extra-large type across the top of the motion, advising that it had been “Redacted in Accordance with the June 25, 2012 order of the U.S. Supreme Court.” View cover page.

Judge Chen, who sits in the Eastern District of New York, was appointed by the Second Circuit as a special master to sort through claims filed by Forbes Magazine and its star investigative reporter, Richard Behar, asking for the release of any documents remaining under seal under the gag orders it had issued in 2012 barring Oberlander and Lerner from referring* to any of the materials they had obtained from Sater’s sealed file. Forbes’ motion was supported by a group of amici, including former New York Times reporter, David Cay Johnson, Michael Moore and BBC (I am also one of the amici).

*Correction made in the last paragraph reflecting that neither Forbes or amici had asked that the injunctions against Oberlander and Lerner be lifted

©DanielJWise2017

 

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One Way to Dance Toward a Judgeship

About eight weeks ago, New York State Assemblyman Dan Quart, who had recently been hired as an associate by the law firm McManus, Ateshoglou, Adams, Aiello & Apostolakos, which is located on the 25th floor at 48 Wall Street, attended a fundraiser, which his new firm had organized to support future Quart political campaigns.

A flyer for the fundraiser  prominently featured Athanasia Apostolakos, one of the name partners at McManus Ateshoglou, asking donors to purchase tickets at a price of $250, $500 or $1,000 to support “Dan Quart For New York City,” a political fundraising vehicle created under New York City’s Campaign Finance Law. According to filing, required by the law, Quart for NYC raised $31,000 in March and April of this year.

That would have been unexceptional but for the fact that just a few weeks later, Suzanne Adams, who is also a name partner of the McManus firm, would appear for an interview with a screening panel set up by the Lexington Democratic Club, seeking its approval to run for one of two seats open this year within the 9th Civil Court District in Manhattan.

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My Joining a Group Founded by Accomplished Investigative Reporter Russ Baker

Dear Followers and Friends of WiseLawNY,

I am pleased to inform you that I have been invited to join WhoWhatWhy.org, a consortium of 100 reporters, editors and other professionals with the skills necessary to produce hard-hitting, meticulously-sourced investigative journalism. My first article, which was published today on WhoWhatWhy’s website is a collaboration with Russ Baker, the group’s founder and guiding light.

Over the course of two decades, prior to founding WhoWhatWhy, Russ did work for many of the world’s leading news outlets, including the New Yorker, Village Voice, Nation, Columbia Journalism Review, Times of London, Esquire, Vanity Fair, etc. He’s also the author of the best-selling investigative history of the Bush dynasty, Family of Secrets.

I very much look forward to working with Russ and the other journalists he has brought together at WhoWhatWhy on stories of national interest. I will continue to write stories on WiseLawNY of interest to judges, lawyers and interested observers of the legal scene in the New York metropolitan area.

Russ’ and my collaboration draws upon two stories that WhoWhatWhy and WiseLawNY published within four days of each other in late March. The WhoWhatWhy story sifted through many coincidences and relationships suggesting that the Trump organization had often been in close proximity to both Mafia families and Russian criminals in New York. It also further identified, Felix Sater, a convicted felon, who was a government informant for more than a decade starting in 1998, as having both business dealings with Trump and deep ties to Russia where he was born.

The WiseLawNY post added to that mix a statement made by a prosecutor in a sealed 2011 court proceeding, which only recently became public, that the informant Sater had produced valuable information about “Russian organized crime.”
Click here to read the story: http://whowhatwhy.org/2017/04/27/government-must-tell-trump-associate-russian-mob-ties/

Regards,
Dan

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Prosecutor Told 2nd Circuit in 2011 Sater Cooperation Included ‘Russian Organized Crime’

Forbes magazine  and one of its top investigative reporters late Wednesday, March 22, asked the U.S. Court of Appeals for the Second Circuit to unseal its records in the case of a government cooperator, Felix Sater, who acted as a go-between for a rogue Ukrainian legislator, who was promoting a pro-Russian peace plan to end the fighting in eastern Ukraine, and President Donald Trump’s personal counsel.

In seeking the release of the records, Forbes’ unsealing motion at p.2 cites “significant public interest in understanding President Trump’s connection to Sater and Sater’s connections to Russia,” especially so because of the ongoing investigations into Russian interference in the 2016 presidential election.

“Documents critical to the public understanding [of those connections] sit sealed on [the Second Circuit’s] docket, wrote Forbes’ lawyers from the prominent First Amendment law firm, Levine Sullivan Koch & Schulz, and a student  clinic at Yale Law School, specializing in prying loose documents hidden from public view.

Moreover, Forbes’s motion reveals at p. 9 that, when the Second Circuit first reviewed the sealing of Sater’s criminal file in 2011, the government’s lead prosecutor informed the court during an oral argument, conducted under a shield of court-ordered secrecy, that Sater’s cooperation “involves violent organizations such as Al Qaeda, it involves foreign governments, it involves Russian organized crime.”

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Did OCA Place Top Prudenti Aide With Legal Services Agency?

On July 28, 2015, the Office of Court Administration swiftly swung into action to accommodate one of its own when then Chief Administrative Judge A. Gail Prudenti announced her plan on July 28, 2015 to retire two days later to head up a student clinic at Hofstra University School of Law. A month later Prudenti’s chief of staff, Eugene Myers, was in place as the top non-lawyer administrator at Mental Hygiene Legal Service for the Second Department, whose 80 lawyers represent persons confined in mental institutions and sex offenders the state wants to civilly commit after they have served their prison terms.

Unlike many of Prudenti’s staffers who either retired or sought work elsewhere with her departure pending, the former Chief Administrative Judge said Myers wanted to remain with OCA until he could qualify for a full pension. Also, tired of the lengthy commute to OCA headquarters in lower Manhattan, she added, he wanted a post closer to his home in Suffolk County.

The Mental Hygiene Legal Service (MHLS), which has its headquarters in Mineola, had an opening for a deputy director, but there was one very substantial obstacle: the job could only be filled by a lawyer and Myers is not an attorney.

To clear that hurdle, court administrators reclassified the deputy director position to eliminate the requirement that the applicant be admitted to the bar, according to a document released in response to my Freedom of Information Law (FOIL) request. In a cover letter, Shawn Kerby, OCA’s FOIL officer explained that the new position was designated as “Special Programs Coordinator” rather than as Deputy Director, Mental Health Legal Service. Despite that designation, Mr. Kerby stated that Myers currently uses the working title of “Deputy Director of Administration.”

The last time the deputy director position was posted in 2011, the job posting required that applicants be admitted to the New York bar.

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Ukrainian “Peace” Emissary Coasts Free While Lawyers Who Outed Him Face Contempt Charges

During the last few days, Felix Sater, whom I have written about extensively since 2012, has surfaced in the national news as an unlikely intermediary, who connected a rogue Ukrainian legislator with President Donald Trump’s personal counsel to hatch a proposal for “peace” in the Ukraine on terms highly favorable to Russia.

Much has been written since the New York Times broke that story about Sater’s unsavory past three days ago, which has included articles on his ties to the Russian mob and his past extensive relationship with Trump as a finder of possible real estate projects in Russia.

What has gone unremarked upon, however, has been the subject of my many articles revealing how the Second Circuit and its surrogate Eastern District Judge Brian M. Cogan have sought to have two New York lawyers cited for contempt. One of them is Richard Lerner, the son of now deceased Justice Alfred Lerner, who  was a presiding justice of the Appellate Division in Manhattan after serving as administrative judge in Queens for many years. The other is Frederick Oberlander, a Long Island lawyer, who had received information from a sealed criminal file in a case where Sater was a defendant and cooperator in a $42 million stock fraud case.

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Judge Nixes Lender Move to Escape 6 Year Bar in Foreclosure Cases

A Supreme Court justice in Brooklyn has forcefully rejected a bid by one of the nation’s largest mortgage lenders to avoid application of New York’s six-year statute of limitations in foreclosure cases.

In a 42-page opinion, Justice Dawn Jimenez-Salta ruled that Wells Fargo bank could not use a Brooklyn homeowner’s participation in a federal program created to help financially strapped homeowners to escape the six-year bar on new foreclosure lawsuits.

Frenkel Lambert Weiss Weisman & Gordon, the firm that represented Wells and its client, U.S. Bank, in the litigation over the statute of limitations did not respond to an inquiry as to whether the decision would be appealed. Neither did Woods Oviatt Gilman, the firm that now represents the two.

Unless reversed, the Oct. 31 ruling leaves Wells Fargo’s client with no recourse to collect on the $639,000 loan at a 7.5 percent interest rate, which was issued to Alberto Martinez in 2005 to finance the purchase of his home in the Ditmas Park section of Brooklyn. In this instance, the owner of the loan was a mortgage-backed investment fund and Wells was acting as its agent in its dealings with Martinez. Most of the nation’s largest banks have affiliated businesses handling dealings between lenders and property owners whose home purchases they have financed.

The ruling is one of a handful of trial-court rulings  to hold that homeowners’ ultimately unsuccessful efforts to obtain lower monthly mortgage payments under the federal Home Affordable Modification Program (HAMP) do not provide lenders with a way to escape New York’s statute of limitations.

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