ALBANY – A judge dropped one of the extortion charges against a former top adviser to Gov. Andrew M. Cuomo, noting that some of the alleged illegal payments received by the ex-official, Joseph Percoco, came while he was off the state payroll.
The decision by U.S. District Court Judge Valerie Caproni came shortly after lawyers from four separate defense teams rested their case Monday in the corruption trial of Percoco and three business executives.
Ten other felony counts remain in the closely watched trial that has revealed glimpses into the inner workings of the Cuomo administration, the use of campaign donations by executives trying to affect state decisions and the extent of influence that politically wired lobbyists can have on Albany.
A lengthy series of summations by prosecutors and the defense lawyers – which attorneys last week said could take a total of up to 16 hours – is set to begin Tuesday morning. The jury is not expected to get the case until Thursday.
The judge Monday asked the four defendants once more if they wanted to testify on their own behalf. They declined.
Caproni dropped an extortion charge against Percoco over payments totaling $35,000 he allegedly received from two Syracuse businessmen – Steven Aiello and Joseph Gerardo – that prosecutors say was part of a scheme meant to have Percoco use his influence in the Cuomo administration to assist their real estate firm called Cor Development.
But the money Percoco received came during a period in 2014 when he was off the state payroll for eight months serving as chairman of Cuomo’s re-election campaign. That, the judge ruled, meant that he could not commit the “official actions” in return for the money because he was not a state official.
Prosecutors have spent weeks trying to push aside the defense teams’ legal arguments that led to the judge’s ruling Monday afternoon. They brought witnesses – including high-ranking officials still on Cuomo’s staff – as well as evidence showing that Percoco kept using his state government office in Manhattan and at the Capitol – and his ability to influence Cuomo staffers – after he shifted over to Cuomo’s campaign payroll in the spring of 2014. He rejoined Cuomo’s government staff a month after the November elections that year.
In her opening charge to jurors six weeks ago, Caproni signaled some problems with the extortion counts, noting that the government “must prove” that Percoco was a public official and that “he obtained property not legitimately due him as a public official.’’
Barry Bohrer, Percoco’s lawyer, last week wrote to Caproni noting that the U.S. Supreme Court has ruled that extortion “is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts.’’
Prosecutors’ claims that Percoco engaged in an extortion scheme in 2014 was, however, “far before the government has alleged that Percoco performed any ‘official act’ relating to the Syracuse developer,’’ Bohrer wrote last week.
Besides the Syracuse developer allegations, Percoco is also accused of using his state position to assist an energy company that built a downstate power plant in return for nearly $300,000 in alleged bribes through what prosecutors called a “low show” consulting deal with the firm for Percoco’s wife.