NOTE: We know that there are more important issues New York is facing than the former senator's flight from justice. But we want to keep you up-to-date with our views on this fascinating case, which we have tracked since it began. This is the only incident we know that has led to the complete makeover of a city agency that no one had heard of before. It is also a study in power and influence — some of it revealed but more still under cover and being investigated. At any rate, we promise: no more Velella until next week at the earliest. If you have questions about the case, you can ask us by e-mail.

Velella Ordered Back to Jail in AM,
Gets 18-Day Stay from Court in PM

By Henry J. Stern
November 30, 2004

Yesterday (Nov. 29) was another big Velella day. No sooner had Supreme Court Justice Lottie Wilkens, sitting at 71 Thomas Street (with seven TV cameras waiting downstairs) denied the former senator's plea for early release from Rikers Island than his lawyers hopped up to the Appellate Division (Madison Avenue at 25th Street), where they were granted a stay of 18 days (until Dec. 16), which will come out of his already abbreviated sentence.

Since he was released on Sept. 28 on the basis of a legally flawed decision by the former LCRC, (all of whose members resigned, except for one who was dismissed by the mayor) and the latest stay ends Dec. 16, he will already have spent 50 days at home while the clock runs on his sentence. Oddly, although Velella's capable lawyer, Charles Stillman, offered to stop the clock during the court proceeding, the city declined the offer as illegal.

At the Appellate Division, the case was assigned to Justice Betty Weinberg Ellerin, supposedly at random by the court clerks. But how random is a selection by one person, or one without a rotation system? The federal courts use a wheel in which judges' names are placed, a kind of mini lottery is held to determine which judge hears which case. That prevents judge-shopping by lawyers. It is not perfect, because some cases are really complex and some judges are really simple. Perhaps the chief judge should have the power to assign judges to very difficult federal or state cases. But the wheel is satisfactory for the great majority of cases — it helps assure fairness and prevent collusion.
 
The state system is quite different. When a lawyer makes a motion in state Supreme Court, he can find out who will be sitting in motion part that day. This gives lawyers leverage in choosing the judge who will hear their matter. Knowing the interlocking relationships of lawyers who have become judges, other lawyers awaiting their robes, and still others who know most of the judges, the federal system is more likely to lead to impartial justice.
 
Several newspapers were distressed at Velella's latest success in avoiding, or at least postponing, justice. The Daily News pursued the cause vigorously: Under the headline, "Crooked Guy catches another break", its editorial begins:

"Believe it or not, disgraced politico Guy Velella is still grasping his "Get Out of Jail Free" card in his grubby little paws. Expected to be put back behind bars (where he belongs) yesterday, the former state senator won yet another reprieve. Such brazen manipulation of the criminal justice system has not been seen since ... well, since Velella got sprung Sept. 29 by the stealth panel known as the Local Conditional Release Commission."

Back to NYCivic: In our judgment, granting the stay was appropriate to allow appellate review. The length of the stay may cause skepticism, but lawyers say the time is brief by Appellate Division standards. Most cases are not heard for months. What we must watch for is how long after Dec. 16 it takes the court to decide the case.

The News editorial continues:

"The schedule: Legal papers will be filed Dec. 7. Answering papers from the city must be filed by Dec. 13. Response from the petitioners is due Dec. 15. Arguments would be heard Dec. 16. And then, who knows when the court will decide. Not much of a rush, is there?
 
"If Velella were in jail (where he belongs) and were seeking release, you could be damn sure matters would be expedited. The way the courts work, the Bronx Republican could still be at liberty when the darling buds of May burst forth. And with all that time taken off his term. Make you angry? It should. Justice is supposed to be blind, but it should not be this stupid."

If a lone judge, Justice Wilkins, could read the briefs, decide the case and write an opinion within seven days, as she so competently did, why would it take five judges on the higher court seventeen days before they even hear the case? Aren't the briefs to be submitted very similar to those already given to Justice Wilkens? When will the appellate division make its decision? In a day, a week or a month? But even then, the losing party can seek leave to appeal to the Court of Appeals, and ask for another stay while the matter is pending.
 
The senator's game plan appears to be to stay out of jail during the Christmas and New Year's holidays, while the judges ponder the case. If that does not happen, we will be surprised, but we have been surprised before in this case — the first time was when we heard about the Local Conditional Release Commission, a body whose members were unlisted in the Green Book, and of whose existence neither Mayor Bloomberg nor New York Civic were aware. The governor and the mayor say, more or less, that they want to put these boards out of their misery by September 2005, when the 1989 law establishing them will sunset, unless LCRC receive a legislative extension, which both the Senate and the Assembly would have to approve.
 
To the public, this case may appear to be a spectacle of insiders circling the wagons to protect one of their own, while they pose as pillars of due process, equal treatment and law enforcement. We note that the case will be argued just eight (or nine) days before the arrival of Santa Claus. Maybe the jolly fellow will have good news for the repentant sinner; perhaps he will leave a lump of coal in the senator's Christmas stocking. We know that he has been naughty, but the judges may also find him nice. It is also possible that the court may defer resolution of the matter to January, so as not to have to make a decision at a time of the year usually reserved for holiday cheer. You can decide for yourself which is the most likely result, and then, when the court rules, find out whether you were right or wrong. No betting, please.
 
We recall that at Parks, and probably at many other places, there was an unwritten rule that you do not fire an employee between Thanksgiving and New Year's Day, unless he or she commits an act so vile it requires immediate action. In Velella's case, the bribery for which he was convicted was committed years ago, and he pleaded guilty in exchange for a one-year sentence five months ago. His previously agreed-upon punishment might be considered unseasonal by a panel of judges chosen through the time-honored process of political preferment, and raised to their current eminence by appointment from Governor Pataki, who chooses judges to sit on the Appellate Division.

(You can skip this paragraph if you find it hard to follow.) A Department of Correction spokesman told the Times that the free time would not count toward the sentence reduction of one-third of the time served, which is normally granted for good behavior. The one-third off would reduce his original sentence from twelve months to eight. What that means is that he would not accrue good behavior time during his holiday from jail. To sum it up, the one-third is only deducted from time actually spent in jail. So if he is in for four months and out for two, he still owes six months; however, the one-third will be deducted from the ten months, not the original twelve, so he will serve 6 2/3 months. That is more about sentencing law than you probably ever wanted to know, but the formula is that, for the time the inmate spends at home, he gets two-thirds credit to reduce the time he serves.

Rule 32-C is relevant here: "If you can't do the time, don't do the crime." If, gentle reader, you do not commit a crime, you will never have to read this again.

Let us not overreact to this case. The senator is not getting away with murder, just bribery. And he does have enormous personal problems: health, financial, and emotional. He certainly did not anticipate when he committed his crimes that he would end up in this predicament. Nor is he the only public official who has done what he did, by any means. And he spread the state's money around his district in member items, which account for some of the letters written on his behalf. On the other hand, he took hundreds of thousands of dollars in bribes, not so much to pass legislation, but as to secure state contracts for painting bridges and providing other services. It is not only Velella, but the Pataki administration which has created a matrix where state employees take orders from corrupt politicians, undermining basic principles of public integrity. But regardless of what Velella has done, we all wish him the best as he deals with his serious illness.
 
It is not the original crimes to which he pleaded guilty, but his legal machinations to avoid the light sentence agreed to, plus the intimation that powerful people intervened on his behalf (now being investigated by both District Attorney Morgenthau and Investigations Commissioner Rose Gill Hearn) that has jeopardized the reputation of the criminal justice system for equal treatment for the rich and the poor, for the wired politician and the ordinary crook. It has also done much greater damage to the senator's reputation than if he had simply served his sentence à la Martha Stewart.
 
But sooner or later, his brief jail term will end. If, after he is freed, he becomes a lobbyist in the orbit of Senate Majority Leader Joseph Bruno, and it becomes legal to pay him to secure the passage, or defeat, of legislation, then he will end up with a much larger income, plus his continuing $80,000 state pension. After he pays his lawyers' fees, he will come out more than whole, except for the unearned income.
 
It is now up to the Appellate Division to see to it that this charade is brought to a timely end.


Today's Velella stories:

• News: "Crooked Guy catches another break," editorial, p40; "Guy stalls return to poky again," by Barbara Ross, p12

• Post: "Spitzer's misplaced fix," editorial, p30; "Velella wins court duel," by Dareh Gregorian, p4

• Times: "Judge Orders Velella Jailed, Then Another Court Steps In," by Sabrina Tavernese, ppB1, B7

• Sun: "Velella Is Granted Two More Weeks Of Freedom," by Jill Gardiner, p2

• Newsday: "Early release controversy: A close call for Velella," by Karen Freifeld, pA2; "A mom's fate tied to Velella's," by Joshua Robin, pA2