People v. Ohrenstein

Decision Date15 June 1988
Citation139 Misc.2d 909,531 N.Y.S.2d 942
PartiesThe PEOPLE of the State of New York v. Manfred OHRENSTEIN, Howard Babbush, Francis Sanzillo, Ralph Quattrociocchi and Joseph Montalto, Defendants.
CourtNew York Supreme Court

Robert Morgenthau, Dist. Atty., New York County (Michael Cherkasky, Patricia Diamond, Robert Brenner, Eliot Spitzer, Mary Farrington, Asst. Dist. Attys., of counsel), for the People.

Hoffinger, Friedland, Dobrish, Bernfeld & Hasen, New York City by Jack Hoffinger, for defendant Ohrenstein.

Pascarella, Capetola, Illmensee & Doddato, Williston Park, by James Pascarella, for defendant Babbush.

Obermaier, Morvillo, Abramowitz & Iason, P.C., New York City by Otto Obermaier, for defendant Sanzillo.

Gough, Skipworth, Petralia, Summers, Eves & Trevett, P.C., Rochester, by Peter Jacobson, for defendant Quattrociocchi.

Martin Adelman, P.C., New York City, for defendant Montalto.

Paul, Weiss, Rifkind, Wharton & Garrison, New York City by Edward Costikyan, amicus curiae for the New York State Assembly.

Kaye, Scholer, Fierman, Hays & Handler, New York City by Paul Curran, amici curiae for the New York State Senate.

HAROLD J. ROTHWAX, Justice:

The defendants herein are, and were at the time of indictment, the minority leader of the New York State Senate and representative from the 27th Senate district of Manhattan, Manfred Ohrenstein; Senator Ohrenstein's chief of staff, Francis Sanzillo; Senator Howard Babbush of the 17th Senate district in Brooklyn; Senator Ralph Quattrociocchi of the 55th Senate district in Rochester; and Joseph Montalto, former Senator from the 23rd Senate district in Brooklyn. All defendants are members of the Democratic Party.

The defendants, jointly and separately, have filed omnibus motions challenging the prosecution of this indictment, on numerous grounds. Since, however, the court's jurisdiction is prerequisite to the resolution of any other issue raised by the defendants, this opinion addresses only the questions of the power of the court to entertain prosecution of the indictment. [CPL 210.20, subd. 1(h) ]. 1

In general, the defendants argue that the subject matter of the conduct charged in the indictment renders the charges nonjusticiable, because continued prosecution would violate the separation of powers among the coordinate branches of the State government, delegated by the State constitution. (N.Y. Const., art. III § 1; art. IV, § 1; art. VI).

The indictment alleges that from January 1, 1986 through January 1, 1987 there existed a conspiracy (PL 105.05) among the defendants "and others known and unknown to the grand jury" to commit the felonies of Offering a False Instrument for Filing in the first degree (PL 175.35), and Grand Larceny in the first and second degrees (PL former 155.35, 155.40) by:

"Us(ing) legislative employees paid from the treasury of the State of New York to work fulltime on election campaigns on behalf of Democratic candidates for the State Senate. While remaining on the public payroll, these employees were assigned to perform purely partisan duties on behalf of Democratic candidates and performed no legislative duties during the campaigns.";

and by

"agree(ing) to hire individuals on the State payroll to work fulltime on the election campaigns of Democratic candidates for the State Senate. These employees were hired exclusively to work on the election campaigns of Democratic candidates for the State Senate, and performed no legislative duties ... (even though) placed on the payrolls of the Minority Leader, other Democratic State Senators, and Legislative Commissions".

In addition to the conspiracy count, the indictment contains 664 substantive counts. The 613 counts of Offering a False Instrument for Filing allege defendants falsely certified to the New York State Senate that certain employees had performed legislative duties entitling them to receive biweekly salaries, when in fact no such duties had been performed during the period specified. The 44 counts of Grand Larceny allege that the salaries thus paid to these employees were stolen. Six counts of Theft of Services (PL 165.15 subd. 9) allege that the labor of certain of the legislative employees was diverted to the use of political candidates. A single count of Defrauding the Government [PL 195.20; L 1986, Ch. 833, (eff. Nov. 1, 1986) ] alleges that from November 1, 1986 to December 24, 1986, defendants obtained property from the State government by engaging in a scheme to defraud involving false and fraudulent pretenses, representations and promises.

Payroll guidelines require a Senator, at the beginning of each legislative session, to sign a Recommendation for Employment form for each member of the Senator's staff, giving the employee's name and title. The title and amount to be paid as salary are determined by the Senator, (and, of course, by the Senator's overall budget allocation for staff). When the Recommendation for Employment form, duly executed by the elected official, is received by the Senate personnel office, the person named is put on the Senate payroll. The form is used both for Senator's staff and commission staff.

In addition to the annual Recommendation for Employment, a Senator is required to sign and submit to the Senate, biweekly, a Payroll Certification form. This document is the subject of the false instrument counts in the indictment. The certification is a roster of employees on the Senator's or commission payroll, giving each employee's name, title, biweekly salary, and status as annual or session staff. The certification states that those named "are employed by the New York State Senate in the position specified and have actually performed the proper duties of the position for the period specified" 2, and authorizes the issuance of paychecks.

Under Senator Ohrenstein's direction the minority leader's office became the center for co-ordinating Democratic strategy to affect legislation in the Senate, which has been dominated by the Republican party for more than a decade. The minority leader's staff assumed a dual role. While some research and draft bills, and provide constituent services for Senator Ohrenstein, most serve as staff of the Senate Minority Conference. The purpose of the Conference is to forge a cohesive legislative agenda among Senate Democrats as a whole. To this end, the Conference staff assist Democratic Senators to develop and draft legislation, write newsletters and comprehend pending bills. Some minority leader staff are assigned on a permanent basis to other Democratic Senators, while remaining on the leader's payroll. The Conference staff also assist newly elected Senate Democrats to establish district offices, develop legislative agenda and understand the legislative process.

In order to perform these functions, the minority leader's staff consists of four groups: the district office; the program staff; commission staff; and the local government coordinating staff. The minority leader's office also includes a counsel staff, a press and public relations staff, and administrative and clerical staff.

The minority counsel's office also supervises the minority commission staffs, even though they are technically employed by the legislative commissions. The evidence revealed that commissions were often inactive, commission staff underutilized, or minority staffers given no active role. Some minority commission staff were used as Minority Conference staff and assigned work unrelated to commission duties. The number of minority commission staff was not established.

Local government coordinators are annual employees. The upstate coordinators, during the legislative session, are primarily assigned to Albany to assess the political impact of proposed legislation. Downstate coordinators (and a few upstate) are assigned one or more Senate districts, often where they have political experience and affiliations. Generally, the assigned districts are represented by a Republican Senator or by a Democratic incumbent whose electoral margin is tentative. These coordinators act as liaison between the Minority Conference and the district's political, elected and business leaders; follow the legislative record of the incumbent to assess its political impact within the district; and analyze issues that are neglected by the incumbent or that could be helpful to a Democratic insurgent. The coordinator also prepares a "profile book" on the district, which contains a description of the demographics of the district; the names of political, elected and business leaders; voting patterns and poll results; the incumbent's legislative history; and recurrent political issues. The purpose of the book is twofold: to help the Conference develop a politically beneficial legislative program, and to assist political campaign strategists. In campaign years the books are used in the conduct of Democratic Senate campaigns.

Minority Conference operations, political and legislative, are supervised by a group of Democratic Senators including the minority leader, designated the Steering Committees.

The political Steering Committee supervises Democratic campaigns for the State Senate. The Committee selects candidates and target districts based upon the relative probability of victory by an insurgent Democrat or defeat to an incumbent Democrat. Districts are selected in part upon information provided by pollsters on the minority leader's payroll. When the districts are selected, the Committee sets the campaign budget, approves the campaign manager and supervises formulation of campaign strategy. Once the campaign begins, the Committee receives regular reports on the status of the campaign; reviews the efforts of campaign managers; reviews poll results; modifies campaign budgets; and assigns members to visit and report to the Committee on the progress of campaigns.

The authority of the Minority Conference Steering Committee...

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5 cases
  • People v. Ohrenstein
    • United States
    • New York Supreme Court Appellate Division
    • December 21, 1989
    ...RUBIN, JJ. PER CURIAM. The People appeal from an order of Justice Harold Rothwax, Supreme Court, New York County, dated June 15, 1988, 139 Misc.2d 909, 531 N.Y.S.2d 942, which dismissed 265 of the substantive counts, and struck certain language and 89 overt acts from the conspiracy count, f......
  • People v. Ohrenstein
    • United States
    • New York Court of Appeals
    • November 27, 1990
    ...jobs at comparable salaries. As Supreme Court observed, the activities of the employees were "blatantly political" (see, 139 Misc.2d 909, 922, 531 N.Y.S.2d 942). As a result of these activities, defendants are charged with (1) second and third degree grand larceny (Penal Law §§ 155.40, 155.......
  • People v. Sullivan
    • United States
    • New York Supreme Court Appellate Division
    • July 18, 1988
    ...People were ready ( see, Matter of Holtzman v. Goldman, supra, at 574-575, 528 N.Y.S.2d at 303-04, 523 N.E.2d at 27-28). (See, 137 Misc.2d 909, 531 N.Y.S.2d 942.) ...
  • People v. Ohrenstein
    • United States
    • United States State Supreme Court (New York)
    • July 1, 1991
    ...of the legislative payroll to compensate campaign workers during the 1986 State senatorial elections. [see People v. Ohrenstein, 139 Misc.2d 909, 531 N.Y.S.2d 942 (Sup.Ct.N.Y.Co.1988) ]. The People's theory of the conspiracy was that campaign work was not among the "proper duties" of State ......
  • Request a trial to view additional results

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