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Ciminelli right choice for RiverBend, says witness at Buffalo Billion trial

NEW YORK – Walter G. Barber never saw evidence of bid-rigging.

And he never had a problem with contractors getting an advance look at requests for proposals.

Barber, former chairman of the board overseeing the Buffalo Billion, took the stand Tuesday as a witness for the prosecution, but you couldn't tell by his testimony.

Over and over again, the former state auditor testified that LPCiminelli, the Buffalo company at the heart of the criminal prosecution, was judged more qualified than the other two companies competing against it.

He pointed to Ciminelli's experience with public-private partnerships and its inventory of available development sites as evidence of its superior qualifications.

"All these factors cut in Ciminelli's favor?" defense lawyer Paul Shechtman asked him at one point.

"Correct," Barber answered.

"A clear cut decision?" Shechtman asked.

"Yes," said Barber.

On Day Two of the Buffalo Billion trial, Barber joined former board chairman Dean Fuleihan in suggesting that some of the allegations against defendants Louis Ciminelli and Alain Kaloyeros are off base.

Earlier in the day, Fuleihan, now deputy mayor of New York City, testified that, like Barber, he saw nothing wrong with private contractors being asked for input on future development projects.

Fuleihan also told the jury in the public corruption trial that LPCiminelli's successful bid did not ensure them a contract to build somewhere.

"It guaranteed them the beginning of a relationship," he told the jury. "It did not guarantee they would actually be the recipient of a contract."

Ciminelli did win the right to build the $750 million RiverBend solar manufacturing plant in Buffalo, the project that gave rise to the criminal charges accusing him and Kaloyeros of fraud and conspiracy.

Kaloyeros, president of the SUNY Polytechnic Institute at the time, was overseeing the Buffalo Billion at the direction of Gov. Andrew M. Cuomo.

The grand jury indictment against the two men claims they engaged in an alleged conspiracy to ensure Ciminelli's construction and general contracting company won the RiverBend project.

As part of that alleged scheme, they are accused of drafting a request for proposals that would guarantee LPCiminelli's success.

During his time on the witness stand, Fuleihan was asked if he ever had dinner with Ciminelli or ever gave him a tour of SUNY Polytechnic.

"I apologize but I don't recall," he said Tuesday.

Even if he had met with Ciminelli, Fuleihan added, it would not have been improper or illegal for him to do so.

Like Barber, he said there are times when private developers can be helpful in drafting a request for proposals and, in short, making it a better RFP.

"Did you believe the RFPs were made specific to any developer?" defense lawyer Michael Miller asked Fuleihan.

"No," he said.

Like Fuleihan, Barber said he was unaware of any effort to draft an RFP that would benefit a specific contractor.

"You have no knowledge that it was rigged," Shechtman asked him.

"Correct," said Barber.

During his testimony, Barber referred to an internal evaluation of the bidders – McGuire Development and Uniland Development were the other contractors – and talked about the factors that led to Ciminelli's selection.

He said both McGuire and Uniland were viewed as less appealing companies by the five people who reviewed their qualifications. He also claims Kaloyeros recused himself from the process.

Fuleihan's testimony also called into question the notion that Kaloyeros felt insecure in his job at SUNY Polytechnic and was eager to please Cuomo.

"My perception was that it was positive," he said of Kaloyeros' relationship with the governor. "My sense from conversations is that Dr. Kaloyeros felt comfortable with that relationship."

At one point Tuesday, Fuleihan was asked about Todd Howe, the former Washington, D.C., lobbyist and longtime Cuomo associate, who has already pleaded guilty to felonies for his role in some of the governor's upstate economic development projects.

Howe was the prosecution's star witness during an earlier public corruption trial that resulted in the conviction of former Cuomo aide Joseph Percoco. He admitted steering bribes to Percoco, who in turn allegedly used his position as Cuomo’s confidante to do government favors for a downstate energy firm and Syracuse-based COR Development in Syracuse.

Until recently, Howe was expected to testify in the Buffalo Billion trial against Ciminelli, Kaloyeros and two executives of COR Development.

Currently in federal prison, he was arrested during his prior testimony after admitting he violated his cooperation agreement.

Fuleihan, who knew Howe, was asked if he was aware of Howe's prior criminal record. He answered, "No."

Howe's record – he has a 2010 felony conviction for theft related to a fraudulent $45,000 bank deposit – was first made public during the first Buffalo Billion trial.

The latest trial also includes two other defendants – Steven Aiello and Joseph Gerardi of COR Development. They also face bid-rigging charges.

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