ALBANY — The five felony charges against former State Sen. George D. Maziarz should be dismissed because state election officials may not agree the Niagara County Republican broke any law, his lawyers said today in an Albany courtroom.
Prosecutors also failed to present to the grand jury evidence that may have spared him the charges, attorney E. Stewart Jones told Albany County Judge Peter Lynch.
The judge did not make any rulings.
Maziarz is accused of funneling money from his campaign account to a public relations firm, which in turn paid a former staffer who left his office amid sexual harassment allegations. The charges stem from a decision to leave that staffer’s name off of campaign disclosure filings.
State Attorney General Eric T. Schneiderman has said Maziarz made $95,000 in payments through the firm to Glenn Aronow for campaign work from 2012 to 2014. Schneiderman alleges Maziarz paid Aronow through the firm to avoid public scrutiny of those payments.
Jones pointed to emails between Board of Elections Chief Enforcement Counsel Risa Sugarman and two attorneys at the board that cast doubt on Schneiderman’s case.
“The emails that you are familiar with … make very clear there is disagreement within the Board of Elections itself,” Jones said.
The emails dealt with a matter in August when Onondaga County Executive Joanie Mahoney used a pass-through company to pay campaign staffers. Her campaign account paid the company, which distributed the funds.
Mahoney did not initially disclose the names of those staffers, only the company that paid them.
At the time, state Board of Elections spokesman John Conklin told the Post-Standard in Syracuse that Mahoney was legally obligated to report who was being paid by her campaign.
That prompted Sugarman to send an email asking both attorneys what the spokesman was talking about.
“Please point me to the statute or reg that John is using to make his statements,” Sugarman said in the email. “I find no opinion issued by the commissioners.”
Brian Quail, a board attorney, replied that election law requires any payment of more than $50 made to "members and agents" of a campaign to be disclosed by name.
“Not convinced,” Sugarman said. “The $50 itemization requirement seems to be satisfied by the detail to Paychex for wages.”
Paychex is the company Mahoney used to make the payments.
Mahoney disclosed the names of her staff a few weeks later when her campaign was told to do so by the Board of Elections. The board did not penalize Mahoney for withholding them initially.
Jones argued in court that Maziarz should be held to the same standard.
“Why do I even care what in-house counsel in the Board of Elections are disputing?” the judge asked Jones at Thursday's hearing.
“In dealing with an identical situation in Syracuse, the Board of Elections identified it simply as a training failure,” Jones said. “That’s not fairness and that’s one of the applications you must consider.”
Assistant Attorney General Christopher Baynes said the emails probably wouldn’t matter if the case goes to trial anyway.
“This entire argument from the defense is based on an inter-agency discussion within the Board of Elections,” Baynes said. “I argue it wouldn’t be admissible in court.”
Claim: Maziarz singled out
Lawyers for Maziarz also contend prosecutors have unfairly singled him out in a case that involves others who may have broken the law.
Jones said the decision to pay Aronow through the firm was made in a private meeting that did not include Maziarz. At least five other people were there, none of whom were charged. Some were given immunity for testifying before the grand jury.
After court, Jones claimed prosecutors only charged Maziarz because of his position as a former state senator.
“George is an ex-state senator, they were not,” Jones said. “This is a headline.”
Lawyers for Maziarz made a similar argument in a previous motion for dismissal in July. That was denied. The new motion is based on information the prosecution was required to give the defense leading up to trial, including witness interviews by the FBI and Schneiderman’s office.
“All that material was not available to us until two and a half weeks before the trial,” Jones said.
The trial was supposed to begin in September.
Baynes argued that since Lynch denied the previous motion, he should deny this one as well.
Lynch didn’t see it that way.
“By the way, none of this material was available to them at the previous motion,” Lynch said, interrupting Baynes.
Grand jury role
Lawyers for Maziarz want the court to take a step back in the case and hold an evidentiary hearing. The hearing would serve as a way for attorneys to show that the grand jury may have been misled to indict Maziarz.
Lawyers for Maziarz believe prosecutors withheld information from jurors so they would be more likely to issue charges. The grand jury did not hear about an interview between Assemblyman Michael Norris and the FBI, for example. Norris told the FBI about the kitchen cabinet meeting where Maziarz was not present.
“As far as I’m concerned it was prosecutorial misconduct not to present the grand jury with what he told the FBI,” said Joseph M. LaTona, another lawyer for Maziarz.
He also argued that a jury would be unlikely to convict Maziarz based on that information. Maziarz is charged with offering a false instrument for filing, a legal term for when someone knows election paperwork contains false information. His lawyers have argued that Maziarz did not prepare or file the paperwork he’s being charged over.
“He did not offer it, he did not present it,” LaTona said. “Unless you can find he did offer it and present it you’re going to have to acquit him.”
Baynes, the prosecutor, said they are not required to present every piece of evidence to a grand jury, just enough to issue an indictment.
“Prosecutors statewide practice that they don’t put their whole case into the grand jury,” Baynes said.
The state has charged Maziarz with five counts of offering a false instrument, each of which carries up to four years in prison. Maziarz is due back in court in March of next year if his motion is again denied.