Judge Pietruszka Center Stage as Pigeon Defense and State Debate Neutrality, Discovery and Evidence

By Frank Parlato

The role of Erie County Judge Michael Pietruszka in the New York State Attorney General’s case against political strategist G. Steven Pigeon was examined in court this week following a Sept. 8 story in Artvoice.

Pigeon was indicted on June 28, charged with bribing former New York State Supreme Court Justice John A. Michalek and extorting attorney Edward Betz.

Pigeon’s attorney, Paul Cambria, cited Artvoice when he filed an affidavit on Sept. 15 and made oral arguments before State Supreme Court Justice Donald Cerio on Monday, Sept. 26.

Defense Attorney Paul Cambria

Defense Attorney Paul Cambria

Cambria argued that, based on their history dating back to 1996, as detailed in Artvoice, there is an appearance that Judge Pietruszka was not a neutral judge when he authorized five search warrants of Pigeon’s email accounts and his home and attempted to assign counsel to a potential witness against Pigeon.

Assistant Attorney General Susan Sadinsky, who leads the prosecution, scoffed at the idea that there could be a conflict of interest for the judge for “long ago events” between Pigeon and Pietruszka when he signed search warrants in 2015 and 2016, and the judge was following routine practice when assigning counsel to David Pfaff, who she called a potential defendant who had not been charged.

Sadinsky criticized Artvoice’s Sept. 8 cover, complaining that pictures of Judge Pietruszka side by side with disgraced former Judge Michalek – the judge Pigeon allegedly bribed – was demeaning to Judge Pietruszka.

Screen-Shot-2016-09-07-at-10.05.19-PM-800x445

The Sept. 8 cover of Artvoice was objectionable to Asst. AG Susan Sadinsky since it placed Judge Piertruszka side by side with ex judge John Michalek.

Prosecutor Sadinsky did not mention that she was ex-judge Michalek’s campaign treasurer when the disbarred and felonious ex-judge ran for reelection in 2008, something Sadinsky also does not feel is a conflict.

Sadinsky helped negotiate Michalek’s plea deal which ensured the 65-year-old ex-jurist would keep his $120,500 annual state pension, plead guilty to two felony counts of soliciting a bribe, and that she, as his prosecutor, would not recommend prison time for Michalek at his sentencing in return for his testimony against Pigeon.

Asst DA Susan Sadinsky

Asst AG Susan Sadinsky will lead the prosecution.

Sadinsky also had scathing criticism for the Artvoice article, which she characterized as offering “purely speculative conclusions” that Judge Pietruszka was not “acting as a neutral and detached magistrate”.

The Artvoice article, illuminated by Buffalo News reports of 1996, reported that when Pigeon became Democratic Party Chairman, he rescinded the party’s endorsement of Pietruszka for State Supreme Court.

Artvoice noted that the News reported in Sept. 1996 that “Pietruszka ended his two-year campaign for Supreme Court when it became clear he stood no chance” with Pigeon who, in turn “denied that pressure was applied to Pietruszka to withdraw from the race”, and called Eugene Fahey a ‘better choice’ than Pietruszka for the endorsement for State Supreme Court.

Another dispute arose in 1998, when Pietruszka ran for County Court judge. Pigeon wanted him to use consultant Frank Sansillo. After Pietruszka won, he declined to pay Sansillo’s $20,000 invoice. A 2002 Buffalo News story quoted Judge Pietruszka criticizing Pigeon over the disputed invoice.

“I was unopposed,” Pietruszka told the Buffalo News, “so why did I need a consultant?”

In court Sadinsky called the narration of these facts, “purely speculative conclusions” of “long ago events,” but purposely mentioned the disputed invoice as an example of Pigeon “shaking down” Pietruszka in 1998.

While these “long ago” events may be irrelevant, the intervening years reveal a chasm created by Pigeon’s selection of Fahey over Pietruszka.

In 20 years, Fahey rose from State Supreme Court to the Appellate Division to the Court of Appeals, the highest post in the state judiciary.

Pietruszka, once elected county judge, remains a county judge 18 years later.

As Artvoice pointed out, but without a conclusion of bias, a judge whose judicial ambitions were altered at a pivotal stage of his career, signed a search warrant near the end of his career, for the home of the man who long ago altered his judicial destiny.

During her presentation, Sadinsky also called Artvoice’s reporting on Judge Pietruszka’s role in assigning counsel to David Pfaff, a possible defendant in the case against Pigeon, an “allegation that Judge Pietruszka engaged in an act of impropriety.”

The Sept. 8 Artvoice article quoted legal experts, including retired State Supreme Court Justice Robert Whelan, who questioned the authority of a judge to assign (taxpayer-funded) counsel to someone not charged with a crime.

The law cited by Judge Pietruszka in assigning counsel to Pfaff is Article 18-B of the County Law § 722, which requires the county to provide “counsel to persons charged with a crime… who are financially unable to obtain counsel.”

While there is only authority in the black letters of the written law to assign counsel to an actual, not potential, defendant, Sadinsky told the court that Robert N. Convissar, Chief Defender of the Erie County Bar Association Aid to Indigent Prisoners Society, Inc., Assigned Counsel Program, told her office that “an assignment of attorney to a person not yet financially qualified for a free lawyer has been a routine practice in Erie County” and “there is a longstanding practice of assigning counsel to a potential defendant prior to charges being filed.”

She did not make clear whether a target letter by the prosecution was a necessary precondition for assigned counsel, or how someone could obtain taxpayer-funded representation without first being vetted for indigence.

According to Erie County Comptroller Stephan Mychajliw, Erie County taxpayers paid $12.5 million for assigned counsel and legal aid services in 2015.

The home page of the Assigned Counsel Programs (http://assigned.org/) mentions nothing of assigning counsel to potential defendants not yet charged with a crime.

In fact, it reads the opposite: “The Assigned Counsel Program… coordinates the assignment of attorneys to represent, at no cost to the client, individuals who are charged with a crime or a violation which could result in incarceration and who cannot afford to retain an attorney…”

“All clients must first be referred to the Program by the Court, and are required to document their financial need…”

Artvoice called Assigned Counsel (716-856-8804) where a voice recording said, “Under state and county law we cannot assign an attorney nor can anyone unless we obtain proof of their financial status and determine their eligibility.”

Callers were asked to have financial documents ready and, if they did not, hang up and call back when they did, since an operator would determine financial eligibility for the program.

convissar

Robert Convissar heads the assigned counsel program for Erie County.

Artvoice sent an email to Convissar asking how a potential defendant finds out if they are eligible for, as Ms. Sadinsky states, “the routine practice” of “getting an assignment of attorney for a person not yet financially qualified?”

“I do not intend to engage in a public debate between prosecutors, private defense attorneys and the Press,” Convissar responded. “This is the only comment I will make. I am confident that the procedures followed in the referral of assignment in this (Pfaff) case were consistent with the operating procedures of the Assigned Counsel Program as mandated by the United States Constitution, the decisions of the United States Supreme Court, the laws of the State of New York and the guidelines of the New York State Office of Indigent Legal Services.”

Convissar added “Our mission is to provide counsel to individuals who are unable to afford counsel”.

At the time Pfaff was assigned counsel by Judge Pietruszka, Pfaff claims he was not told he was a potential defendant, never received a target letter or received Miranda warnings.

He said he was never vetted for financial eligibility.

At the time, he was working for State Senator Marc Panepinto as a Senior Constituent Liaison and, according to SeethroughNY.net, a website that lists pay of state employees, his salary was $1,731 biweekly, or $45,006 annually.

According to Pfaff, the events that led up to his being assigned counsel were suspicious to him and indicated to him that he was not a target but that the prosecution was hoping to get him to testify as a witness against Pigeon.

In late August, 2015, Pfaff said he got a surprise visit from FBI agent Brian Burns.

“They said they wanted to meet with me. I said, ‘I can’t meet with anybody unless I have an attorney present.’”

“Who’s your attorney?” Burns asked.

“Peter Reese.”

According to Pfaff, “Agent Burns seemed highly agitated and told me, ‘You don’t want him. We have tried to keep you out of the news. We’re trying to help you. We heard that Senator Panepinto has told people that if your name winds up in the news you will lose your job. Pete Reese is the wrong attorney to keep you out of trouble.”

“I still have to get an attorney, even if Pete doesn’t represent me, before I can talk to you,” Pfaff said he told agents. “And I can’t afford an attorney.’

Pete-1

Attorney Peter Reese represents David Pfaff and said he found the manner in which Judge Pietruszka attempted to assign counsel for his client suspicious.

“We will get you an attorney,’ Burns said, according to Pfaff.

A few days later Pfaff received a letter from Judge Pietruszka, which said, “I have assigned Mark Worrell, Esq. to represent you,” and provided Worrell’s contact information. The letter did not indicate whether Pfaff was a potential defendant or witness.

Pfaff wrote back to the judge (Sept. 18, 2015), declining the judge’s offer of assigned counsel, informing the judge that he “asked attorney Peter A. Reese to counsel me on this matter.”

A few days after Pfaff told Judge Pietruszka that Reese was going to be his attorney, on Sept. 29, 2015, Reese received a surprise visit from the FBI at his home.

Later that same day, FBI agents Burns and Chris Bzduch, an investigator with the Attorney General’s office, met with Reese.

According to Reese, Burns told him “You’re going to be conflicted out since you are going to be called as a witness against Pfaff.”

Reese said he threatened to oppose such a motion and would bring TV cameras to the hearing.

“You’ll be getting yourself in some trouble,” Burns told Reese. “You better talk to Judge Pietruszka.”

That same day, Judge Pietruszka sent a letter to Pfaff, copying Worrell and Sadinsky, but not Reese, to inform Pfaff that “a meeting has been scheduled to address your assignment of counsel issue” on October 13, 2016 in the judge’s courtroom.

On October 5, Reese wrote to the judge, “I was told repeatedly by FBI Special Agent Brian A. Burns that I could not represent Mr. Pfaff as I was going to be a witness in the case against (Pfaff) and that I ‘better talk to Judge Pietruszka’ about this. This suggests that there have been prior communications with the Court about this issue, without any notice to me or my client.”

That same day, Judge Pietruszka wrote to Reese, finally recognizing Reese as Pfaff’s attorney.

On October 13, 2015, Reese again wrote to the judge, “… You state that you appointed counsel at the request of the Attorney General’s office, yet their authority to make such a request is unclear as their interests are hostile to Mr. Pfaff’s. Their communication appears to be ex parte so the question arises of which exception to the general ban on such communications applies here?

“You state that counsel was appointed pursuant to County Law 18-B, however, that statute only allows counsel to be appointed to represent someone ‘charged with a crime.’ I have no information that Mr. Pfaff has been so charged.”

Judge Michael Pietruszka

Judge Michael Pietruszka

Reese said after his last letter he never heard from the judge and his client was never charged.

Reese, who was in court on Monday, disagreed with Sadinsky’s assertion that taxpayers are routinely required to pay for counsel for people not charged with a crime and without vetting for financial eligibility.

“I suspect Mr. Convissar is misusing county funds,” Reese said, adding he submitted a Freedom of Information request to the county for the finances of the assigned counsel program and their contract with Erie County.

:Every penny as far as I can see is financed by the taxpayers of Erie County, of which I am one, “ Reese said. “What I think happened in Mr. Pfaff’s case was when I told my client not to speak to FBI agents, state prosecutors found it necessary to get rid of me.”

Sadinsky said in court the reason why FBI Special Agent Burns asked the judge to assign an attorney other than Reese was because they were concerned about Pfaff’s welfare and that Reese was not a criminal lawyer.

When he heard this in open court, Pigeon’s lawyer, Cambria, objected, asking if prosecutors were now supplanting “Martindale-Hubbel,” the information services company that provides reviews of lawyers and law firms for consumers and professionals.

Cambria said, “The claim that Reese had a conflict and – and he’s not a criminal lawyer? Now the Attorney General’s office decides what lawyers can do and can’t do? They’re going to rate them, so we won’t have Martindale-Hubbell anymore, we’ll have AG rating here. To try to tell somebody their lawyer can’t do a particular job? And think about this for a second, the Judge appoints a lawyer without ever having a hearing where they establish that, A, there was a conflict; B, Reese wasn’t his lawyer and couldn’t represent him; or that when Pfaff told the Court Reese was his lawyer, he never said anything about him not being his lawyer. He did inquire as to whether he could be paid, but never said anything about him not being his lawyer. Now they’re saying that, well, we can interrupt a lawyer-client relationship, get a Judge to do it under a law that doesn’t allow a witness to have a free lawyer, without qualifying the person as being entitled to a free lawyer, making a determination with no papers, just us and the Judge, that they have a conflict so they need another lawyer? That’s pretty astounding stuff that we’re hearing here today. I’m flabbergasted that they would think that that could happen.”

Reese agreeing with Cambria’s assessment, told Artvoice, “I know nothing about the lawyer they assigned to Mr. Pfaff (Mark Worrell) but do you think it is a good idea for the prosecution to pick defendants’ attorneys? We can have one stop shopping. The prosecution can both prosecute you and handle your defense.”

Over the course of the nearly two hours of oral arguments in Judge Cerio’s court, it became clear that the topic of Judge Pietruszka was one part of a larger issue of discovery where Cambria wanted evidence, he said, that is routinely turned over to the defense as part of due process, including the probable cause affidavit that justified the original search warrant on a citizen’s home and his private papers (emails).

During most of the proceedings, Judge Cerio seemed to listen intently. At one point, he asked Cambria, suggesting, for the sake of argument, that if Judge Pietruszka was not neutral, would it matter as long as there was probable cause for the search warrants?

Cambria answered “How can I tell?” if the prosecution refuses to give the defense the underlying documents for the search warrants.

Sadinsky argued that to reveal the underlying affidavit that established probable cause for the judge would expose a confidential informant which might spoil an ongoing investigation into corruption. The defense argued that, except in organized crime and street crime cases where confidential informants’ safety might be compromised, the underlying affidavit must not be denied in order to have due process and effective assistance of counsel.

In the end, Pigeon’s defense wants a hearing to determine issues of neutrality, and if Judge Pietruszka had a conflict of interest under the Code of Judicial Conduct.

G. Steven Pigeon

G. Steven Pigeon

The state opposes these requests based on a cited Supreme Court decision that only when a judge has a direct, personal, substantial or money interest in reaching a conclusion or when a judge is a party, or has been attorney, or is related to any party, is there any basis for recusal.

“Absent a statutory basis for recusal, a trial judge ‘is the sole arbiter of recusal,'” Sadinsky argued.

Before she finished her presentation to the court, Sadinsky had further, scathing criticism of this writer.

“In order for this Court to fairly assess the veracity of Parlato’s claim, adopted by the defendant, that Hon. Michael Pietruszka failed to act as a neutral and detached magistrate… the People believe that the Court should be aware of salient information about Parlato and his relationship with the defendant. Like the defendant, Parlato is currently under indictment.

“He has something in common with Mr. Pigeon. Mr. Parlato also is under indictment,” Sadinsky said. Along with various tax-related charges, she said, “Mr. Parlato was charged in November with defrauding Sara and Clare Bronfman, heirs to the Seagram fortune, out of $1 million. The women were introduced to Mr. Parlato by Mr. Pigeon,” Sadinsky said.

While Sadinsky contention that “Parlato’s claim (is) that Hon. Michael Pietruszka failed to act as a neutral and detached magistrate” is debatable, unless the mere reporting that others claimed it is tantamount to making the claim. Artvoice attempted to get Judge Pietruszka’s view but he declined comment.

Sadinsky perhaps gets closer to her point when she said, “Like the defendant, Parlato is currently under indictment.”

While not claiming Sadinsky made an ad hominem attack, since the article was irrefutably based on facts, one suspects Sadinsky knows a defendant is innocent until proven guilty, and being proven guilty is an unlikely scenario in my case to say the least, as I will soon demonstrate.

That I suspect prosecutorial misconduct on the part of the state against Pigeon is bolstered by my firsthand witnessing of what I strongly suspect is prosecutorial misconduct during the federal investigation into my activities and my subsequent indictment, cannot be denied.

I suspect former Assistant US Attorney Anthony Bruce ignored evidence pointing to my innocence, twisted facts, intimidated witnesses and fabricated timelines to create a fictional narrative he presented to the Grand Jury to point to my guilt.

In one stunning moment of clarification, Bruce, who said his entire fraud charges against me with Seagram heiresses, Clare and Sara Bronfman, were based on a “fully executed contract,” which, when asked by my attorneys to produce, he admitted he could not find.

That he went ahead with an indictment that relies with respect to the Bronfmans on a non-existent contract which the Bronfmans heirs themselves admitted under oath did not exist, showed, what I now suspect, was his remarkable arrogance and disregard for the truth.

I began to wonder if my case was an isolated one, or have prosecutors reached such a sense of their awesome power to indict that they have recklessly replaced Blackstone’s rule of “It is better that ten guilty persons escape than that one innocent suffer” with “It is better to indict ten innocent persons since nine will take a plea bargain anyway.”

Bruce’s argument with my attorneys, that his department had spent far too much time on my case not to have a felony plea, was not persuasive to me….

(to be continued)

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