Hevesi Wants Judge to Recuse Himself for Ex-Comptroller's SentencingBruce A. Green in Bloomberg, March 08, 2011
By Karen Freifeld
Former New York state comptroller Alan Hevesi asked the judge who accepted his guilty plea to recuse himself, saying he hid a conflict of interest so he could preside over a newsworthy corruption case.
State Supreme Court Justice Lewis Bart Stone’s conflict stems from his longtime personal and fiduciary relationship with the father of Hevesi’s lawyer, according to papers filed today in Manhattan state Supreme Court.
Stone, who was scheduled to sentence Hevesi on March 10, disclosed last week that he is a trustee and executor of the attorney’s father’s estate. He told Hevesi’s lawyer, Bradley Simon, in court that he had been disinherited. Simon is estranged from his father.
“Faced with a clear conflict of interest, Judge Stone intentionally hid the conflict, rather than disclose it, in order to preside over this high-profile matter,” according to the papers, filed in support of the motion for recusal.
Stone today declined to comment on the motion, according to his court clerk. Last week, Stone postponed Hevesi’s sentencing hearing until March 28. He said if he decides to withdraw, the sentencing will be assigned to another judge.
Hevesi pleaded guilty before Stone in October to approving pension fund investments in exchange for almost $1 million in gifts. He is the highest-ranking official convicted in a three- year investigation by former New York Attorney General Andrew Cuomo, who is now the state’s governor. Hevesi may be sentenced to as little as no time in prison or to a range of one year and four months to four years.
At the time of the plea, Stone said in court that he had made a sealed record in which he determined he had no conflicts in the case, according to a transcript. Simon said in today’s papers he was surprised the judge didn’t disclose his close personal relationship with the elder Simon. As Hevesi’s sentencing approached, Simon said, he became increasingly concerned about it.
“I knew that my father harbors extreme ill-will toward me and I began to worry about what my father might be saying about me to Judge Stone and how that animus might infect his decision concerning my client,” Simon said in the filing.
Simon requested the March 1 hearing. He described Stone’s revelations as “a bombshell.”
“It was a very unsettling feeling hearing the judge blurt out, while I was representing a client in court, that I had been disinherited,” Simon said.
Simon collected statements supporting the bid for recusal from three experts on judicial ethics. Fordham University School of Law Professor Bruce A. Green is quoted saying the circumstances call Stone’s impartiality into question.
“Having agreed professionally to take a role in the senior Mr. Simon’s punishment of his son by disinheriting him, will the court also punish the son’s client?” Green wrote.
Hevesi, who resigned in 2006, admitted as part of his plea that he gave preferential treatment to Markstone Capital Partners, approving $250 million in pension fund investments in exchange for almost $1 million in gifts, including $75,000 in travel expenses, $380,000 in sham consulting fees for a lobbyist and more than $500,000 in campaign contributions.
At least six people and 21 firms settled with Cuomo, paying about $170 million to the state and the pension fund, and about eight have pleaded guilty in criminal cases.
In all, about $5 billion of the New York state pension fund’s $9.5 billion in alternative investments made in the 2003- 2007 period were tainted by kickbacks, according to the U.S. Securities and Exchange Commission, which also investigated.