Lieutenant Governor Brian Benjamin Indicted on Federal Charges of Bribery, Fraud and Falsification of Records

 

Lt. Gov. Brian Benjamin takes a question during a news conference April 7, 2022.Credit...
Cindy Schultz for The New York Times

New York is home of "when you're running for office and/or elected, you can take all the money you want from any pocket."

Until you get caught.

UPDATE: Brian benjamin resigned on April 12, 2022,  after his arrest.

NY Lt. Gov. Brian Benjamin Resigns Following Arrest in Campaign Finance Fraud Case: Hochul

Betsy Combier

betsy.combier@gmail.com

Editor, ADVOCATZ.com

Editor, ADVOCATZ Blog

Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
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Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Lt. Gov. Benjamin Arrested in Campaign Finance Scheme

By William K. Rashbaum, Nicholas Fandos and Jeffery C. Mays, NY TIMES, April 12, 2022

Lt. Gov. Brian A. Benjamin of New York, the state’s second-in-command to Gov. Kathy Hochul, surrendered early Tuesday morning to face a federal indictment charging him with bribery, fraud, and falsification of records in connection with a scheme to funnel illegal donations to a previous campaign.

The five-count indictment accused Mr. Benjamin of conspiring to direct state funds to a Harlem real estate investor in exchange for orchestrating thousands of dollars in illegal campaign contributions to Mr. Benjamin’s unsuccessful 2021 campaign for New York City comptroller.

“In so doing, Benjamin abused his authority as a New York State senator, engaging in a bribery scheme using public funds for his own corrupt purposes,” prosecutors charged in the indictment. The investor was arrested on federal charges in November.

The indictment — the result of an investigation by the F.B.I., U.S. attorney for the Southern District of New York and the city’s Department of Investigation — also charged that Mr. Benjamin subsequently “engaged in a series of lies and deceptions to cover up the scheme,” including falsifying campaign donation forms, misleading New York City authorities and giving false information as part of a background check to become lieutenant governor last year.

The legal turmoil casts Mr. Benjamin’s political future in question, and complicates this year’s election for him and Ms. Hochul, who was catapulted into office last year after her predecessor, Andrew M. Cuomo, resigned after numerous allegations of sexual misconduct.

There is no suggestion that Ms. Hochul was aware of Mr. Benjamin’s alleged criminal conduct, which prosecutors said occurred when he was a state senator. Still, she took office last year promising to end an era of impropriety in Albany, and selecting Mr. Benjamin, 45, was among her first major decisions as governor.

Lawyers for Mr. Benjamin, James D. Gatta and William J. Harrington, initially declined to comment, as did the United States Attorney’s office and the F.B.I. Spokeswomen for Mr. Benjamin and Ms. Hochul also declined to immediately comment.

Mr. Benjamin will almost certainly face pressure to resign from office. Even if he were to step down, he will likely remain on the ballot in June, when he faces two spirited primary challengers. Because Mr. Benjamin was designated as the Democratic Party’s nominee for lieutenant governor, his name can only be removed at this point if he were to move out of the state, die or seek another office.

Mr. Benjamin said recently that he had been cooperating with investigators, who had issued subpoenas in recent weeks to the State Senate in Albany and people who had advised his comptroller campaign. The lieutenant governor, accompanied by his lawyers, met with prosecutors last week, according to a person familiar with the matter, and his top aides were reassuring allies in private that he expected to be cleared of any wrongdoing in the case.

But the Harlem real estate investor who illegally assisted his campaign, Gerald Migdol, while not listed by name in the indictment, began providing information to investigators after he was arrested in November on an indictment charging him with wire fraud, aggravated identity theft and other crimes related to his role in the fund-raising scheme, according to the people with knowledge of the matter.

In that indictment, prosecutors said that Mr. Migdol began to steer thousands of dollars worth of fraudulent contributions to Mr. Benjamin in October 2019, just a month after the state senator filed to run for comptroller. They accused him of making straw donations in the name of individuals, including his 2-year-old grandchild, who did not consent to them, and of reimbursing others for the cost of their contributions.

At the time, the prosecutors did not comment on Mr. Migdol’s motive, or explicitly name Mr. Benjamin. But they said his scheme was designed to help the candidate tap into New York City’s generous public campaign matching funds program and secure him tens of thousands of dollars in additional campaign cash.

The two men were close and traded accolades at a series of charitable and political functions over the years in Harlem, where Mr. Migdol made a name for himself distributing school supplies and Thanksgiving turkeys through his charity.

State records and a Facebook photo posted by Mr. Migdol at the time show Mr. Benjamin presenting him with an oversized cardboard check for $50,000 for the charity, Friends of Public School Harlem, in September 2019. It is unclear if the funds, which were earmarked as part of a discretionary state education fund, were ever actually delivered, but they represented one of the largest outside gifts ever directed to the small charity.

A graduate of Ivy League schools, Mr. Benjamin, spent much of his career in banking and affordable housing development before winning a State Senate seat representing most of Harlem in 2017.

In Albany, he was a leading proponent of criminal justice reform measures passed by Democrats after they won the majority in 2018. He finished fourth last year in the Democratic primary for comptroller.

Ms. Hochul selected Mr. Benjamin to be her lieutenant governor last August, after the resignation of Mr. Cuomo elevated her to the governor’s mansion from that position. The decision was widely seen as a way for Ms. Hochul, a white moderate from Buffalo, to expand her appeal to nonwhite voters in New York City ahead of this year’s elections.

It is unclear how carefully Ms. Hochul or her advisers vetted Mr. Benjamin before the appointment.

There had already been published reports by The City at the time showing that Mr. Benjamin’s campaign had benefited from apparent straw donations, as well as ethical concerns about his use of campaign funds for a wedding celebration and automobile expenses. (Mr. Benjamin later refunded the suspect contributions and reached an agreement to repay the campaign expenses in question.)

The duties of the lieutenant governor position vary by administration. Mr. Benjamin has kept a brisk schedule of official events in the eight months since taking office, often presiding over the State Senate and representing Ms. Hochul at events in the New York City area. As Ms. Hochul’s experience made clear, the lieutenant governor’s most important function is to step in should the governor resign or die in office.

Mr. Benjamin faces two formidable primary opponents: Diana Reyna, a former New York City councilwoman, and Ana Maria Archila, an activist backed by the left-leaning Working Families Party.

If either were to defeat him and Ms. Hochul still prevails in her race, the governor could find herself on a Democratic ticket in this fall’s general election with a relatively adversarial running mate.

The news of Mr. Benjamin’s arrest spread throughout Harlem’s political community on Tuesday, with many declaring his innocence. Mr. Benjamin, who rose from being the chairman of the Central Harlem community board, was considered a rising star. When Ms. Hochul announced his appointment, she did so on 125th Street in Harlem.

“When this is all over with, it’ll be what I know: Brian did not do anything to break the law,” said Hazel N. Dukes, the president of the New York State chapter of the N.A.A.C.P., and one of Mr. Benjamin’s political mentors.

William K. Rashbaum is a senior writer on the Metro desk, where he covers political and municipal corruption, courts, terrorism and law enforcement. He was a part of the team awarded the 2009 Pulitzer Prize for Breaking News. @WRashbaum • Facebook

Nicholas Fandos is a reporter on the Metro desk covering New York State politics, with a focus on money, lobbying and political influence. He was previously a congressional correspondent in Washington. @npfandos

Jeffery C. Mays is a reporter on the Metro desk who covers politics with a focus on New York City Hall. A native of Brooklyn, he is a graduate of Columbia University. @JeffCMays

From ADVOCATZ: Claimant Wins Unemployment Benefits After Resigning for "Good Cause"

 

Re-posted from ADVOCATZ.com, Sept. 7, 2017:

The case of Yolanda Cohen decided by the Appellate Division Third Department shows the importance of a fact-based defense by a Claimant showing “good cause” for resignation due to workplace harassment.

We at Advocatz use terms such as “Just Cause” (or ‘good cause’) and “bad faith” in our defense of a Respondent brought to Education Law 3020-a arbitration. We want the Hearing Officer to look at the facts, or lack thereof, and the fairness and integrity of the process followed in support of those facts.

From Wikipedia:

“Good cause is a legal term denoting adequate or substantial grounds or reason to take a certain action, or to fail to take any action prescribed by law. What constitutes a good cause is usually determined on a case-by-case basis and is thus relative.

Often the court or other legal body determines whether a particular fact or facts amount to a good cause. For example, if a party to a case has failed to take legal action before a particular statute of limitations has expired, the court might decide that the said party preserves its rights nonetheless since that party’s serious illness is a good cause or justification for having additional time to take the legal action.”

( Henry Campbell Black; Joseph R. Nolan; Jacqueline M. Nolan-Haley (1991). “good cause”. Black’s Law Dictionary. West Pub. Co. p. 476).

Thus, a sustainable, valid defense in any forum results from a thorough, fact-based inquiry into the background of a case using the “good cause” justification.

Similarly, a valid defense should have a fact-based presentation of bad faith by the defendant(s).

From Wikipedia:

“Bad faith (Latin: mala fides) is double-mindedness or double heartedness in duplicity, fraud, or deception. It may involve intentional deceit of others or self-deception.

The expression “bad faith” is associated with “double heartedness”, which is also translated as “double-mindedness”. A bad faith belief may be formed through self-deception, being double-minded, or “of two minds”, which is associated with faith, belief, attitude, and loyalty. In the 1913 Webster’s Dictionary, bad faith was equated with being double hearted, “of two hearts”, or “a sustained form of deception which consists in entertaining or pretending to entertain one set of feelings, and acting as if influenced by another”. The concept is similar to perfidy, or being “without faith”, in which deception is achieved when one side in a conflict promises to act in good faith (e.g. by raising a flag of surrender) with the intention of breaking that promise once the enemy has exposed himself. After Jean-Paul Sartre‘s analysis of the concepts of self-deception and bad faith, bad faith has been examined in specialized fields as it pertains to self-deception as two semi-independently acting minds within one mind, with one deceiving the other.

Some examples of bad faith include: a company representative who negotiates with union workers while having no intent of compromising; a prosecutor who argues a legal position that he knows to be false; an insurer who uses language and reasoning which are deliberately misleading in order to deny a claim.”

Betsy Combier

President and Founder, ADVOCATZ
betsy.combier@gmail.com
Editor, NYC Rubber Room Reporter
Editor, Parentadvocates.org
Editor, New York Court Corruption
Editor, National Public Voice
Editor, NYC Public Voice
Editor, Inside 3020-a Teacher Trials

Appellate Division, Third Department

In the Matter of the Claim of

2017 NY Slip Op 05885

In the Matter of the Claim of YOLANDA COHEN, Respondent.

NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICES, Appellant.

COMMISSIONER OF LABOR, Respondent.

Appellate Division of the Supreme Court of New York, Third Department.

Decided July 27, 2017.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 11, 2015, which ruled that claimant was entitled to receive unemployment insurance benefits.

Zachary W. Carter, Corporation Counsel, New York City (Michael J. Pastor of counsel), for appellant.

Michelle I. Rosien, Philmont, for Yolanda Cohen, respondent.

Eric T. Schneiderman, Attorney General, New York City (Linda D. Joseph of counsel), for Commissioner of Labor, respondent.

Before: Peters, P.J., Garry, Egan Jr., Rose and Mulvey, JJ.

MEMORANDUM AND ORDER

EGAN, Jr., J.

Claimant worked for the employer as a paralegal from 2007 to 2012, during which time various disciplinary charges were lodged against her. In February 2012, claimant and the employer entered into a stipulation of settlement resolving the most recent round of disciplinary infractions. Pursuant to the terms of that stipulation, claimant would waive her right to a Civil Service Law § 75 hearing and would resign effective March 15, 2012. In the interim, claimant would be allowed to collect her accrued annual leave and, going forward, would receive a “neutral reference” from the employer. Notably, the stipulation of settlement contained no admission of misconduct, and no finding of wrongdoing on the part of claimant was made.

Claimant subsequently filed an application for unemployment insurance benefits, and the Department of Labor issued initial determinations disqualifying claimant from receiving benefits upon the grounds that she voluntarily left her employment without good cause or, alternatively, lost her employment due to misconduct. Following a lengthy hearing, an Administrative Law Judge (hereinafter ALJ) overruled the initial determinations, finding that claimant had good cause to separate from her employment and had not otherwise committed disqualifying misconduct. In so concluding, the ALJ found that claimant had been subject to a hostile work environment. The Unemployment Insurance Appeal Board subsequently adopted the ALJ’s findings and affirmed the ALJ’s decision, prompting this appeal by the employer.

We affirm. As a general proposition, a claimant who voluntarily leaves his or her employment without good cause will not be entitled to receive unemployment insurance benefits (see e.g. Matter of Flint-Jones [Federal Reserve Bankof N.Y.— Commissioner of Labor], 144 AD3d 1288, 1288-1289 [2016]), and the same holds true for a claimant who engages in disqualifying misconduct (see e.g. Matter of Trunzo [Commissioner of Labor], 145 AD3d 1308, 1309 [2016]). That said, “[a] claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct” (Matter of Jimenez [New York County Dist. Attorney’s Off.—Commissioner of Labor], 20 AD3d 843, 843 [2005] [internal quotation marks and citation omitted]; accord Matter of Cohen [Town of Brookhaven—Commissioner of Labor], 91 AD3d 998, 998 [2012], lv dismissed 19 NY3d 831 [2012]; Matter of Straw [Rocky Point Union Free School Dist.—Commissioner of Labor], 32 AD3d 1098, 1099 [2006]). “Whether a claimant has engaged in disqualifying misconduct is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence” (Matter of Oberman [New York City Dept. of Citywide Admin. Servs.—Commissioner of Labor], 143 AD3d 1022, 1023 [2016] [internal quotation marks and citations omitted]; see Matter of Trunzo [Commissioner of Labor], 145 AD3d at 1309).

Claimant and the employer’s witnesses presented competing accounts of claimant’s work history, her work product, her general demeanor and her interaction with others in her office. Without recounting the extensive testimony offered on these points, suffice it to say that the employer portrayed claimant as an insubordinate malcontent who failed to timely and appropriately complete assignments or respond to various emails or directives. Claimant, on the other hand, testified at length as to the “bullying” and harassment that she endured at the hands of her supervisors, recounted the manner in which she was verbally threatened by certain individuals in her office and disputed the employer’s account of her overall work performance. This conflicting testimony presented factual and credibility issues for the Board to resolve (see Matter of Saunders [Life Adj. Ctr., Inc.—Commissioner of Labor], 106 AD3d 1317, 1317-1318 [2013]). As noted previously, the stipulation of settlement entered into between claimant and the employer contained no finding or admission of wrongdoing on the part of claimant. Further, upon crediting claimant’s testimony as to the nature of her work environment and her reasons for resigning, the Board agreed with the ALJ’s findings that claimant’s actions did not rise to the level of disqualifying misconduct but, rather, were undertaken in direct response to her “hostile” and “untenable” work environment — an environment that, in turn, provided “a compelling reason for her to resign.” As there is substantial evidence to support the Board’s decision in this regard, it will not be disturbed — despite the presence of other evidence in the record that could support a contrary conclusion (see Matter of Barrier Window Sys., Inc. [Commissioner of Labor], 149 AD3d 1373, 1375 [2017]).

Peters, P.J., Garry, Rose and Mulvey, JJ., concur.

ORDERED that the decision is affirmed, without costs

see Matter of Kolmel:

Matter of Kolmel v City of New York

2011 NY Slip Op 07265 [88 AD3d 527]

October 18, 2011

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, December 7, 2011

 

In the Matter of William Kolmel, Appellant, v City of New York et al., Respondents.

—[*1]

Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Edward F. X. Hart of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Carol R. Edmead, J.), entered June 10, 2010, which, insofar as appealed from as limited by the briefs, denied the petition seeking, inter alia, to annul the determination of respondent Department of Education (DOE) denying petitioner certification of completion of probation and terminating his employment as a probationary teacher, and denying his appeal of an unsatisfactory rating (U-rating) for the 2008-2009 school year, and dismissed the proceeding brought pursuant to CPLR article 78, unanimously reversed, on the law, without costs, the petition granted to the extent of annulling the U-rating and the matter remanded to DOE for proper completion of the final review and recommendation.

The record shows that following three years of probationary service as a high school social studies teacher, petitioner had received satisfactory reviews and year-end reports. However, petitioner was informed he would not be recommended for tenure that year and agreed to enter into an agreement extending his probation through the 2008-2009 school year. During this fourth year, petitioner received two satisfactory and two unsatisfactory classroom reports, two letters to the file for unbecoming conduct, and his principal gave him an unsatisfactory rating in each category on the year-end report (except voice and appearance, which were left blank) and an overall U-rating. As a result, it was recommended that petitioner be denied certification of completion of probation, which required termination of his service and precluded him from being hired by any other high school in the City.

“[A] . . . probationary employee may be discharged for any or no reason at all in the absence of a showing that his or her dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law” (Matter of Brown v City of New York, 280 AD2d 368, 370 [2001]; see Matter of Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, 765 [1988]). “Evidence in the record supporting the conclusion that performance was unsatisfactory establishes that the discharge was made in good faith” (Matter of Johnson v Katz, 68 NY2d 649, 650 [1986]); the same standard applies when a teacher challenges a “U” rating (see Batyreva v New York City Dept. of Educ., 50 AD3d 283 [2008]).

Here, the two negative classroom observations cited in the year-end report, which [*2]criticized petitioner’s manner of asking questions, and the file letters, could rationally support a finding that petitioner had not developed into a proficient high school social studies teacher, following three years of suggestions and assistance (see e.g. Matter of Murnane v Department of Educ. of the City of N.Y., 82 AD3d 576 [2011]).

However, petitioner submitted evidence that the principal who made the determination to award the 2008-2009 U-rating did not observe petitioner’s teaching during either of his final two years at the school. This was in violation of DOE’s rules concerning teacher rankings, which require at least one observation by the principal and pre-observation meetings with probationary teachers in danger of U-ratings. Furthermore, the year-end report, on its face, was completed by the principal in an arbitrary manner, including unsatisfactory rankings in every category, even where unsupported by any evidence or contradicted by evidence in the report itself. Petitioner’s assertion that the principal stated at the administrative hearing that she did not rely on the file letters in making her tenure recommendation is not disputed by respondents. Petitioner also submitted a statement by a current DOE employee who formerly worked at the high school, that the principal pressured assistant principals to give negative U-ratings without observing the teachers. These deficiencies in the review process leading to the recommendation to deny tenure and terminate petitioner’s employment are not merely technical, but undermined the integrity and fairness of the process (see Matter of Blaize v Klein, 68 AD3d 759 [2009]; Matter of Lehman v Board of Educ. of City School Dist. of City of N.Y., 82 AD2d 832, 834 [1981]; compare Matter of Davids v City of New York, 72 AD3d 557, 558 [2010] [technical failure to follow rules not bad faith where delays were undertaken in attempt to allow petitioner to bring his performance up to standards]). Concur—Mazzarelli, J.P., Moskowitz, Acosta, Renwick and DeGrasse, JJ. [Prior Case History: 2010 NY Slip Op 31350(U).]