The New York Law Journal by Daniel Wise - December 15, 2009
Ex-Brooklyn Justice Gerald P. Garson's appeal of his criminal conviction and three-to-10 year sentence was argued yesterday in the Appellate Division, Second Department, just days before he is to be released on probation. Mr. Garson's lawyer, Jeremy Gutman, came out swinging, telling the four-judge panel that Mr. Garson had been denied his "fundamental" right to a fair trial by the prosecution's repeated "insinuation" that Mr. Garson had taken bribes to fix cases, a charge that was not contained in the indictment. Assistant District Attorney Seth M. Lieberman rejected that charge, saying the issue of case fixing had been raised by the defense as part of its trial strategy. The panel sporadically asked both sides questions during the 45-minute argument and did not press either with follow up questions. The panel consisted of Justices Joseph Covello, Daniel D. Angiolillo, Ruth C. Balkin and Sandra L. Sgroi, none of whom was elected from Brooklyn, where Mr. Garson handled divorce cases in Supreme Court.
Mr. Garson is set to be released on parole on Dec. 23. His arraignment on April 24, 2003, was quickly followed by rumors and published reports that he was helping the Brooklyn District Attorney's Office investigate whether Supreme Court justices were paying more than $50,000 in bribes to local Democratic officials to obtain nominations. Former Brooklyn Democratic Party leader Clarence Norman was subsequently indicted and convicted for election-related crimes, but no one was charged with bribery in relation to arranging nominations. The eight-month investigation of Mr. Garson spawned charges against six others who were charged in two satellite schemes, neither of which was ever linked to Mr. Garson. Nissim Elman, an Israeli businessman and three others pleaded guilty to a scheme in which Mr. Elman claimed he could bribe Mr. Garson. Court Officer Louis Salerno was convicted of accepting bribes to steer cases to Mr. Garson, and Paul Sarnell, a court clerk, was acquitted of that charge. After a month-long trial, Mr. Garson was convicted in April 2007 on one count of first-degree bribery and two counts of accepting rewards for official misconduct. Three months later, Justice Jeffrey A. Berry, who presided over the trial, sentenced Mr. Garson consecutively on the three counts to at least three years in prison. The jury had found Mr. Garson guilty of third-degree bribery for accepting thousands of dollars in drinks and meals from attorney Paul Siminovsky in exchange for giving ex parte advice in a case Mr. Siminovsky had before the judge, court-assigned appointments and unfettered access to his courtroom. On the two official misconduct counts, the jury convicted Mr. Garson of accepting a box of cigars as a "reward" for misconduct. The second misconduct conviction related to his acceptance of a $1,000 fee from Mr. Siminovsky for having referred two clients. Mr. Siminovsky, who agreed to wear a wire after being confronted with evidence implicating him in the bribery, was the prosecution's key witness. Other critical evidence came from a video camera investigators obtained a warrant to secret in Mr. Garson's robing room. The camera recorded Mr. Siminovsky delivering both the box of cigars and the $1,000 referral fee to Mr. Garson. Mr. Siminovsky plead guilty for his role in bribing Mr. Garson and was sentenced to a year in jail.
Yesterday, Mr. Gutman, Mr. Garson's lawyer, accused the prosecution of orchestrating a campaign to inflame public opinion against his client by making the "poisonous" charge that Mr. Garson had accepted gifts to fix cases in the news release the Brooklyn district attorney issued to announce the judge's arrest. The charges contained in the indictment did not make for "nearly as compelling headlines" as the case-fixing claim, which the prosecution injected into the case many times, starting with the opening statement of the lead prosecutor Michael F. Vecchione, Mr. Gutman argued. Mr. Vecchione's comment that the wife of one of Mr. Siminovsky's divorce clients "never had a shot" before Mr. Garson was particularly damaging because the judge, who had been assigned to handle divorce cases, frequently presided over emotionally charged divorce battles. Mr. Lieberman countered that the issue of case fixing had been triggered by Mr. Garson's trial attorney, Michael Washor, who had made it a part of his "narrative" to undermine extensive video- and audio-tape evidence. Mr. Washor had argued, Mr. Lieberman said, that prosecutors at first thought Mr. Garson was fixing cases, but when they discovered he had not, the prosecution had "staged crimes" to videotape. In its brief, the prosecution stated that Mr. Vecchione's remark was fair comment on a statement Mr. Garson made in an ex parte discussion with Mr. Siminovsky, which was captured by the camera in his robing room. In that statement, Mr. Garson had told Mr. Siminovsky that his client was "a winner" and did not "deserve it." In his brief for Mr. Garson, Mr. Gutman wrote that it is "the height of impropriety for a prosecutor to accuse a defendant of uncharged crimes."
Probation Still at Issue
Mr. Garson, 77, has served 2½ years in prison. He had about six months of his sentence shaved off by the Department of Probation because he had successfully completed a substance and alcohol abuse program and behaved satisfactorily in prison. With the argument being held only 10 days before his release on parole, even a reversal would be too late to reduce the time he had to serve. A victory, however, would upset the requirement that Mr. Garson remain on parole for the next 7½ years and leave him eligible to apply for readmission to the bar. It took more than 2½ years for Mr. Garson's appeal to come before the Second Department because both sides had to contend with a 3,600-page record and hundreds of hours of audio- and videotapes, Mr. Gutman said. He added that Mr. Garson has been in a work release program for the last couple of months but declined to release any further details. Mr. Garson, who has been disbarred, is prohibited from being affiliated with a law firm. Daniel Wise can be reached at firstname.lastname@example.org.