A Federal appeals court in Manhattan has upheld the conviction of Joseph Percoco, ex-Governor Andrew Cuomo's former top aide and longtime confidant, for receiving $320,000 in bribes, despite finding that the trial judge erred in her instructions to the jury regarding that crime.
They did so based on their conclusion that jurors would have arrived at the same verdict if the mistake had not been made.
The three Judges from the Court of Appeals for the 2nd Circuit, in a ruling written by Richard J. Sullivan, said they agreed with the prosecution's contention that "the error here was harmless" because the evidence against Mr. Percoco and his co-conspirators was overwhelming.
Father's 'Third' Son
The former Executive Deputy Secretary to the Governor, whom Andrew described during the 2015 funeral of three-term Gov. Mario Cuomo as being like his father's "third son," had been convicted in 2018 of accepting the bribes to use his position and influence to affect state government action regarding portions of the Buffalo Billion economic-development project for upstate New York and another matter regarding a major contributor to the then-Governor.
Part of the bribe scheme involved a "low-show" job for Mr. Percoco's wife, Lisa Toscano-Percoco, a former Teacher, to prepare educational materials for Competitive Power Ventures, one of the bidders for Buffalo Billion business. It was arranged for her by a company executive, Peter Galbraith Kelly, who later pleaded guilty to defrauding his firm by falsely claiming that Mr. Percoco had gotten state ethics approval for his wife to work for CPV.
The court opinion noted that Todd R. Howe, a lobbyist who had worked for both Andrew Cuomo and his father, connected Mr. Percoco to Mr. Kelly after the then-Governor's top aide told him he "needed an influx of cash" because of a large mortgage payment that was coming due.
Mr. Howe, who became a cooperating witness for the prosecution in return for leniency regarding his own criminal acts, "testified that the plan was solidified during a 2012 dinner in Danbury, Connecticut—and even Percoco concedes that the Power Purchase Agreement was discussed over dinner," Judge Sullivan stated in the ruling. "The evidence further reflects that Percoco pressured Howe to seal the deal with Kelly so that Percoco could get his 'ziti,'" a reference to money that was borrowed from an episode of "The Sopranos."
Timing Left 'No Doubt'
"And," the decision continued, "only after CPV began paying Percoco's wife for her low-show job did Percoco exert his influence to secure the Power Purchase Agreement for CPV...Howe's testimony, the email evidence, and the timing of the payments expel any doubt" that there was a quid pro quo.
That left the three Judges, who also included Reena Raggi and Denny Chin, with "no reasonable doubt that a properly instructed jury would necessarily have found Percoco guilty of the CPV honest-services fraud scheme," Judge Sullivan wrote in the 55-page decision.
They reached a similar conclusion regarding Mr. Percoco's dealings with Steven Aiello, chief executive of the real-estate firm COR Development Co., in getting the Empire State Development Corporation to reverse its position on the need for a Labor Peace Agreement for one of his projects..
Judge Sullivan—who as a District Judge in 2009 sentenced then-AFL-CIO President Brian M. McLaughlin to 10 years in Federal prison in another high-profile public-corruption case—wrote that Mr. Percoco's lawyer during his final arguments to the jury "effectively conceded in summation that COR Development paid [his client] to advance the company's interests with respect to the Labor Peace Agreement."
Didn't Buy Aiello's Tale
The jurors, the ruling stated, rejected Mr. Aiello's claim that the improper payments to Mr. Percoco were made without his knowledge by Mr. Howe, who was lobbying on his company's behalf. It noted that Mr Howe testified that "Aiello 'wanted that labor peace agreement to go away and realized that Joe was in a position that...could make that happen,'" and the memo line in one of Mr. Percoco's paychecks specifically referred to his work on it.
The Court of Appeals Judges also rejected Mr. Percoco's claim that he could not be found guilty of honest-services fraud for actions he took in 2014, when he was on leave from his state post to manage Mr. Cuomo's bid for a second term. Trial Judge Valerie Caproni, they noted, had told jurors that Mr. Percoco did "not need to have a formal employment relationship with the state in order to owe a duty of ...honest services to the public" if he had a fiduciary duty because he "(1) 'dominated and controlled any governmental business' and (2) 'people working in the government actually relied on him because of a special relationship he had with the government.'"
Judge Sullivan's opinion noted that in his job as Executive Deputy Secretary to the Governor, "Percoco had power over the Executive Chamber's budget, personnel decisions, and operations. He also had a significant role in overseeing labor relations, governmental affairs and legislative affairs, and he worked closely with the Governor and other senior officials in the Executive Chamber. Percoco's power was amplified by his unique relationship with Governor Cuomo; he had worked with Governor Cuomo in a number of roles, and was known for being close to him and his family."
Like He Never Left
It went on to note that while he was on leave from his state position, "no one ever formally replaced Percoco in his role as Executive Deputy Secretary...Throughout the election campaign, Percoco also held onto and used his Executive Chamber telephone, desk, and office, where he continued to conduct state business."
And Mr. Howe, the opinion noted, had testified that "Percoco's grip on power never changed, diminished or dissipated as he managed the campaign."
Prosecutors stated at the time that Mr. Percoco and another top aide who rigged the bidding process for large Buffalo Billion contracts, Alain Kaloyeros, were indicted five years ago, that there was no evidence of wrongdoing by Mr. Cuomo.
Besides upholding the original ruling that has Mr. Percoco serving a six-year prison term in the upstate Otisville Federal prison, the judges affirmed the conviction that has Mr. Aiello scheduled to serve three years now that his appeal has been denied.
In a separate ruling, the same panel upheld a 3 1/2-year sentence for Mr. Kaloyeros—who has been free on bail pending his appeal--for steering more than $850 million in Buffalo Billion contracts to two of Mr. Cuomo's biggest donors. Again, there was no evidence linking the then-Governor to that chicanery; Mr. Howe had testified that when Mr. Kaloyeros, while handling the contracts, asked how he could ingratiate himself with Mr. Cuomo, he had replied that the best way was to anticipate what he might want done and then do it.
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