Appeals court asked to toss conviction, bar retrial of ex-senator, 81

Section: Main,  Page: A3

Date: Friday, December 24, 2010

ALBANY -- Attorneys for former state Senate Majority Leader Joseph L. Bruno filed his appeal brief Thursday seeking to throw out his conviction on honest services fraud. It also asks the U.S. Second Circuit Court of Appeals in Manhattan to bar federal prosecutors from retrying the 81-year-old Republican.

The appeal brief was filed two months earlier than a court-imposed deadline, putting the case on track for a possible ruling before next summer. The appeal is certain to result in Bruno's conviction on two felony counts being vacated: Federal prosecutors have conceded that under a U.S. Supreme Court ruling last summer, a federal honest services prosecution must include specific allegations of a bribe or kickback, which Bruno's case did not.

The issue left hanging is whether the appeals court will allow prosecutors to re-try Bruno on charges that include allegations he received kickbacks in exchange for his political muscle as one of New York's most powerful lawmakers.

The U.S. Attorney's office indicted Bruno in January 2009 on an eight felony counts alleging he failed to disclose material conflicts of interest between his public duties and private earnings. A jury acquitted Bruno on five counts, convicted him on two and reached no verdict on another. He was sentenced last year to 24 months in prison but U.S. District Judge Gary L. Sharpe stayed the punishment pending the outcome of Bruno's appeal.

In the brief filed Thursday Bruno's lawyers level harsh criticism at the U.S. Attorney's office for forging ahead with their case after the defense team said they had warned prosecutors -- and the court -- that the impending Supreme Court ruling would unwind the conviction, which it has.

"While the government concedes that Mr. Bruno's two convictions cannot stand, it nonetheless seeks a do-over, but the government is not entitled to receive one," the brief states. "The government did not merely submit Mr. Bruno's case to a jury based on improper instructions. It based the entire prosecution upon an Indictment that failed to charge a single valid crime."

The brief also notes the jury convicted Bruno on two counts related to his dealings with a Loudonville businessman, Jared E. Abbruzzese, but acquitted him on two other counts related to the same scheme with Abbruzzese. The defense team noted the verdict was inconsistent and yet another example of a problematic case.

"The law demands that this court do more than simply vacate Mr. Bruno's conviction and remand the case to the district court, as the government would like," the brief states. "Rather, this court must both vacate Mr. Bruno conviction and dismiss the Indictment against him."

Brendan J. Lyons can be reached at 454-5547 or by e-mail at