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Buffalo Billion trial could be pushed off until spring of 2018

ALBANY – The corruption case involving state contracts, including construction of the SolarCity plant in Buffalo, may be separated into two trials and put off until next spring, just as Gov. Andrew Cuomo would be jump-starting his re-election campaign for a third term, a new court filing suggests.

Joon H. Kim, the acting U.S. Attorney for the Southern District in Manhattan, acknowledges in a letter to a federal judge that it could be preferable to split into two trials the cases against eight defendants who were involved in various economic development projects from Buffalo to Orange County.

Kim wrote to Judge Valerie E. Caproni  conceding prosecutors would not object to delaying the trial date from this October to the spring as a way to accommodate scheduling conflicts that several defense lawyers face as well as the recent health condition of Buffalo executive Louis Ciminelli.

The federal prosecutor said it would be “fair to the parties” if two trials were set: one for the “Percoco bribery scheme” case and one for the “Buffalo Billion fraud and bribery scheme."

Joseph Percoco, a longtime friend and adviser of Cuomo, is among those charged in the corruption case initially brought last year by former U.S. Attorney Preet Bharara.

Kim said the government would not oppose a trial date of January 8 for the Percoco-related case and a different trial “beginning in April or May 2018” for the Buffalo Billion case. Defendants in the Buffalo case include Ciminelli, two former top executives of his development firm, and Alain Kaloyeros, the former SUNY Polytechnic president who led upstate economic development projects.

Ciminelli being treated for 'significant' health condition as he awaits trial

Kim's office continues to oppose efforts to move the trials out of Manhattan. The three Buffalo defendants have asked that their trial be held in Western New York.

Cuomo is not accused of any wrongdoing, but the federal case has been lodged against several people with long ties to him or have been connected to major economic development projects in Buffalo and Syracuse that he touted as examples of a revitalization in upstate New York. Todd Howe, a longtime Cuomo ally, pleaded guilty last year in the corruption case and has been cooperating for more than a year with the U.S. Attorney’s office and FBI investigators.

Documents were unsealed last week stating that Ciminelli has a serious health condition and that he could not assist in his defense in time for a scheduled October 30 trial date. The judge is still deciding whether to split the cases into two trials; Ciminelli, along with former LPCiminelli executives Kevin Schuler and Michael Laipple, have requested the trial in their case be transferred from Manhattan to Buffalo, a move Kim’s office has opposed.

In the letter to the judge, Kim says the defendants would not be deprived of having adequate time to prepare for a trial if one were held on October 30, the date Caproni in April had tentatively set. However, Kim added, “The government takes no position on defendant’s request for adjournment based on personal or logistical concerns.’’

Splitting the case against the eight men into two different trials would be “in the interest of facilitating trial preparation” and help prevent “any risk of difficulties or juror confusion at trial” in the different alleged bribery or bid-rigging schemes, Kim said.

The federal prosecutor, however, strongly dismissed defense lawyers' concerns that there has been inadequate time to defend their clients in a case that produced a library’s worth of discovery documents. Kim noted that by October the defense counsels will have had over a year’s worth of access to “detailed roadmaps” of the various charges.

In a footnote, Kim added: “The defendants assert, for example, that they ‘have been left without a meaningful roadmap’ to help them find the ‘haystacks … let alone the needles that may ultimately prove critical.’’’ Kim concluded, however: “Not only has the government identified clearly the ‘haystacks’ in its numerous discovery letters and discovery index, but in fact described precisely in the Complaint dozens of the ‘needles’ that form the central evidence in this case.’’

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