The People, Respondent,v.John F. Haggerty, Jr., Appellant, et al., Defendant.BriefN.Y.June 3, 2014APL-2013-00199 To be argued by VINCENT RIVELLESE (30 Minutes Requested) COVER Court of Appeals STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, - against - JOHN F. HAGGERTY, JR., Defendant-Appellant. B R I E F F O R R E S P O N D E N T CYRUS R. VANCE, JR. District Attorney New York County Attorney for Respondent One Hogan Place New York, New York 10013 Telephone: (212) 335-9000 Facsimile: (212) 335-9288 danyappeals@dany.nyc.gov HILARY HASSLER VINCENT RIVELLESE ASSISTANT DISTRICT ATTORNEYS Of Counsel DECEMBER 23, 2013 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .............................................................................................. ii INTRODUCTION................................................................................................................ 1 QUESTIONS PRESENTED .............................................................................................. 7 THE EVIDENCE AT TRIAL ............................................................................................ 8 The People’s Case ....................................................................................................... 8 Defendant’s Case ...................................................................................................... 23 POINT TESTIMONY BY A LAWYER WHO DRAFTED THE BLOOMBERG REVOCABLE TRUST THAT THE MAYOR OWNED THE MONEY IN THE TRUST DID NOT VIOLATE THE BEST EVIDENCE RULE. IN ANY EVENT, THAT TESTIMONY WAS HARMLESS, BECAUSE THE MAYOR'S OWNERSHIP OF THE MONEY WAS OVERWHELMINGLY PROVED. .............................. 24 CONCLUSION ................................................................................................................... 45 -ii- TABLE OF AUTHORITIES STATE CASES Billingy v. Blagrove, 84 A.D.3d 848 (2nd Dep’t 2011) ........................................................... 32 Chamberlain v. Amato, 259 A.D.2d 1048 (4th Dep’t 1999) ................................................. 32 Harmon v. Matthews, 27 N.Y.S.2d 656 (Sup. Ct., Bronx County 1941) ............... 33, 36, 40 LaRue v. Crandall, 254 A.D.2d 633 (3rd Dep’t 1998) ......................................................... 33 People v. Alvino, 71 N.Y.2d 233 (1987) ................................................................................ 35 People v. Crimmins, 36 N.Y.2d 230 (1975) ........................................................................... 41 People v. Dicks, 100 A.D.3d 528 (1st Dep’t 2012) ............................................................... 32 People v Dolan, 186 N.Y. 4 (1906) ........................................................................................ 40 People v. Haggerty, 103 A.D.3d 438 ......................................................................................... 6 People v. Hamilton, 304 A.D.2d 500 (1st Dep’t 2003) .......................................................... 32 People v. Joseph, 86 N.Y.2d 565 (1995) ..................................................................... 31, 38-39 People v. Rosario, 9 N.Y.2d 286 (1961) ................................................................................. 38 Schozer v. William Penn Life Ins. Co., 84 N.Y.2d 639 (1994) .............................. 31-34, 38-40 Trombley v. Seligman, 191 N.Y. 400 (1908) ........................................................................... 31 STATE STATUTES Penal Law § 155.40 ................................................................................................................. 1 Penal Law § 155.42 ................................................................................................................. 4 Penal Law § 175.10 ................................................................................................................. 5 Penal Law § 470.15 ............................................................................................................. 1, 4 OTHER AUTHORITIES http://www.nyccfb.info/act-program/fd/FD_2012_1.htm ......................................... 23 COURT OF APPEALS STATE OF NEW YORK THE PEOPLE OF THE STATE OF NEW YORK, Respondent, -against- JOHN F. HAGGERTY, JR. Defendant-Appellant. BRIEF FOR RESPONDENT INTRODUCTION By permission of Chief Judge Jonathan Lippman, defendant John F. Haggerty, Jr., appeals from a February 7, 2013 order of the Appellate Division, First Department. By that order, a unanimous Appellate Division panel affirmed a December 19, 2011 judgment of the Supreme Court, New York County (Ronald Zweibel, J.), convicting defendant, after a jury trial, of Grand Larceny in the Second Degree (Penal Law § 155.40[1]) and Money Laundering in the Second Degree (Penal Law § 470.15[1][b][ii][A][iii]). Pursuant to that judgment, the court sentenced defendant to concurrent, indeterminate state prison terms of 1 to 4 years and to pay $750,000 in restitution. After defendant’s conviction was affirmed by the Appellate Division, he surrendered and began serving his sentence. Chief Judge Lippman granted defendant’s request for leave to appeal and, thereafter, for bail pending -2- appeal, and defendant was released on bail after having served 5 months of his sentence.1 The convictions in this case arose from defendant’s theft by false pretenses and false promise of at least $750,000 from New York City Mayor Michael R. Bloomberg. During the summer of 2009, Mayor Bloomberg was running for re-election. Defendant was a trusted volunteer with the Mayor’s campaign, which the Mayor financed entirely with his own money. In August 2009, defendant agreed to arrange on behalf of the Mayor for “ballot security” on Election Day, an endeavor that brings together a team of poll watchers, drivers, and attorneys to ensure that eligible voters are able to vote. Ballot security is traditionally conducted by political parties for the benefit of all the candidates running in an election, so defendant and Deputy Mayor Kevin Sheekey agreed that the Mayor would transfer funds to the Independence Party for disbursement to a vendor hired by defendant to conduct the ballot security. Meanwhile, defendant was under pressure to come up with over $1 million to buy his brother’s half of the house in Forest Hills that they had recently inherited from their father. Accordingly, defendant devised a plan: He would induce the Mayor to approve a ballot security budget of $1.1 million by falsely promising to 1 Codefendant Special Elections Operations, LLC (“SEO”), a corporation created, owned and staffed solely by defendant, was charged jointly with defendant on the money laundering count. SEO was convicted and sentenced to a conditional discharge, and it is not a party to this appeal. Because defendant was the only person associated with SEO, and the money laundering count against each was based on the same conduct by defendant, SEO’s liability is not separately discussed in this brief. -3- implement an elaborate ballot security plan, but defendant would divert most of the money to himself to buy the house. Over the course of the month before Election Day, defendant cultivated an amorous relationship with the Chief Financial Officer of the Mayor’s campaign, touted his expertise at conducting ballot security, and presented the Mayor’s closest advisors with increasingly detailed proposals for ballot security services he had no intention of providing – all in a frenzied effort to induce the Mayor to approve a transfer of funds that defendant could channel to himself in time to buy the house. With just days remaining before Election Day and the funds from the Mayor still not forthcoming, defendant finally presented the Mayor’s advisors with enough detail to induce the funding he wanted: an itemized budget promising to spend over $1 million on 1355 paid poll workers, hundreds of roving teams, managers, car rentals, office space and other specific expenses. To increase the urgency of the need for the Mayor to relinquish the funds, defendant also falsely represented that he had already incurred about a third of these expenses. The budget was approved in reliance on defendant’s false promises and lies, and the Mayor wired $1.2 million from the Bloomberg Revocable Trust to the Independence Party, expecting that $1.1 million would be spent on defendant’s ballot security plan. On Election Day itself, defendant used only unpaid volunteers for ballot security and conducted a much smaller operation, ultimately spending only about $30,000 on it. The Mayor won the election, and the unspent money remained in the -4- Independence Party’s account, awaiting disbursement to defendant’s designated vendor. Instead, defendant laundered most of the proceeds of his larceny when he then incorporated SEO – a shell entity created by defendant solely to serve as a conduit for the Mayor’s money to flow unnoticed to defendant – and had SEO bill the Independence Party $750,000 for ballot security expenses that were never incurred. The Independence Party paid the bill, and defendant promptly used most of the money to close on his father’s house. Defendant’s scheme began to unravel in January 2010, when a New York Post reporter began investigating the Mayor’s $1.2 million transfer. Still trusting defendant, the Mayor’s aides turned to him for proof of the operational expenses. Lacking such proof, defendant drafted three back-dated checks to Election Day volunteers for poll watching services they had not rendered, and he tendered photocopies of these checks to the Mayor’s aides. A criminal investigation ensued, and the trail of the Mayor’s money ultimately led to defendant’s newly purchased house. By indictment number 2598/2010, filed on June 10, 2010, a New York County Grand Jury charged defendant with Grand Larceny in the First Degree (Penal Law § 155.42) for stealing over $1 million from Mayor Bloomberg, Money Laundering in the Second Degree (Penal Law § 470.15[1][b][ii][A][iii]) for hiding the proceeds of that theft, and three counts of Falsifying Business Records in the First Degree (Penal Law § 175.10) for drawing the phony checks. -5- On September 26, 2011, defendant proceeded to trial before Justice Ronald A. Zweibel and a jury. During the trial, Mayor Bloomberg and his advisors testified that defendant’s persistent efforts to persuade the Mayor to fund his ballot security proposal ultimately led the Mayor to approve a transfer of $1.2 million of his money, and that Mayor Bloomberg’s accountants effected that transfer from the Michael R. Bloomberg Revocable Trust account. Defendant did not question the Mayor or his advisors about that account or about the Mayor’s ownership of these funds. Near the end of the trial, defendant cross-examined Investigator Matthew Paul about how one would ascertain who owned the money in the trust. Paul professed ignorance of the answer, and in response the People called Marjorie Friday, an attorney who had drafted Mayor Bloomberg’s will – the document creating the trust. Friday testified that Bloomberg owned the money in the trust, over defendant’s objection that the will was the “best evidence” of that fact. From a privacy standpoint, the Mayor was reluctant to produce the will voluntarily and neither party asked the court for a subpoena compelling him to produce it. Nonetheless, the People secured the Mayor’s voluntary production of the relevant portions of the will for use by defendant’s trial attorneys while cross-examining Friday. Defendant did not argue that anything in the trust document contradicted Friday’s testimony. At the end of the trial, the court dismissed the falsifying business records counts and submitted the money laundering and first degree grand larceny counts to the jury, with second degree grand larceny as a lesser included offense. On October -6- 21, 2011, the jury acquitted defendant of first degree grand larceny and convicted him of second degree grand larceny and money laundering. On December 19, 2011, Justice Zweibel imposed sentence as noted above. On appeal to the Appellate Division, First Department, defendant contended that Friday’s testimony confirming that Mayor Bloomberg owned the money in the Bloomberg Revocable Trust violated the best evidence rule. He also contended that the evidence was insufficient to prove second degree grand larceny and money laundering, and that the trial court should have granted a mistrial for alleged prosecutorial misconduct. On February 7, 2013, the Appellate Division unanimously affirmed defendant’s convictions. People v. Haggerty, 103 A.D.3d 438. With respect to the best evidence rule, the court “considered and rejected” defendant’s arguments without elaboration, citing to Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639, 643-644 (1994). 103 A.D.3d at 439. The court also found the evidence of both counts to be sufficient, and that the trial court properly denied the mistrial motion. On appeal to this Court, defendant abandons his sufficiency and prosecutorial misconduct claims, and he reasserts his claim that lawyer Marjorie Friday’s testimony that Mayor Bloomberg owned the money withdrawn from the Bloomberg Revocable Trust violated the best evidence rule. -7- QUESTIONS PRESENTED 1. Bank records disclosed to the defense pre-trial reflected a transfer of $1.2 million from the “Michael R. Bloomberg Revocable Trust” to the Independence Party; Mayor Bloomberg and his advisors testified at trial that the Mayor approved this transfer, and the Mayor’s accountants testified that they effected the transfer, all without any defense suggestion that the money did not belong to the Mayor. When defendant later elicited from a financial investigator that he did not know whether the Mayor owned the money in the trust account, the People called Marjorie Friday, the lawyer who drafted the document creating the trust, to confirm that the Mayor owned the money in the account. Did the “best evidence rule” forbid Friday’s testimony? The Appellate Division held that it did not. 2. Even assuming that Marjorie Friday’s testimony that Mayor Bloomberg owned the money in the Bloomberg Revocable Trust should not have been admitted, was admission of that testimony nonetheless harmless, given all the other evidence in the case that the money transferred to fund defendant’s sham ballot security plan came from the Mayor? The Appellate Division did not reach this question. -8- THE EVIDENCE AT TRIAL The People’s Case In 2009, MICHAEL R. BLOOMBERG was running for a third term as New York City’s Mayor. First Deputy Mayor PATRICIA HARRIS, Deputy Mayor for Government Affairs KEVIN SHEEKEY and Mayoral aide ALLISON JAFFIN were among Mayor Bloomberg’s closest advisors (Sheekey: 78-79, 133-139, 145-146, 149- 151, 157-158, 210; Harris: 236-239, 299-300, 309; Bloomberg: 332-335, 369; Jaffin: 430-432, 486).2 Mayor Bloomberg financed his campaigns personally. Harris and Jaffin, as Harris’s assistant, had the authority to order the transfer of funds from the Mayor’s personal accounts for campaign purposes; Sheekey did not (Sheekey: 79, 106, 139, 145, 187; Harris: 236-241, 251-258, 305, 309-310; Bloomberg: 321-323, 332-335, 362-363, 369, 374-376; Jaffin: 431-432, 473, 486-489). Mayor Bloomberg had for many years entrusted the management of his personal fortune to Geller & Company. Thus, the Mayor tapped Geller employees DIANNE RIZZO to serve as the treasurer of his 2009 campaign, and FIONA REID as the Chief Financial Officer (Bloomberg: 336-337; Rizzo: 532-533, 542-544; Reid: 584-587, 590). Rizzo and Reid did not make decisions about how the Mayor’s money 2 Parenthetical page references herein, unless otherwise noted, are citations to Respondent’s Supplemental Appendix, filed in three volumes with this brief. Citations to appendix pages reproducing testimony will be preceded by the witness’s name, citations to appendix pages reproducing a trial exhibit will be preceded by the exhibit number, and citations not preceded by a descriptor are to appendix pages reproducing non-testimonial portions of the transcript, such as arguments and colloquy among court and counsel. -9- would be used for the campaign. They merely provided advice when asked, and they executed transactions upon the Mayor’s accounts as directed by the Mayor, Harris or Jaffin (Bloomberg: 322-323, 336; Rizzo: 533, 542, 548, 555-557; Reid: 586). Defendant had earned the trust of Sheekey and the Mayor’s other advisors during the Mayor’s 2005 campaign, when the Mayor ran as a Republican and defendant worked with the Republican party to provide “ballot security” during the election (Sheekey: 80-81, 154-157; Harris: 257, 267; Bloomberg: 351-352; Jaffin: 433). “Ballot security” is a term that describes the coordination of poll watchers, drivers, lawyers, and others to ensure that polling places remain functional and accessible to legitimate voters (Sheekey: 83-85, 111-112; Harris: 259; Bloomberg: 324, 339-341). Political parties, rather than individual campaigns, usually handled ballot security. In 2005, as in 2001, the Mayor had personally contributed about $1 million to the Republican Party’s “housekeeping” account to bankroll its ballot security plan (Sheekey: 84, 188-189, 194-195, 201-202, 219-223; Harris: 245-246, 259, 285; Bloomberg: 324, 328, 339-346, 350-351; campaign finance lawyer KENNETH GROSS: 758-761, 795-799, 813-819, 824). Mayor Bloomberg, Sheekey and Harris had come to respect defendant’s political expertise after the 2005 campaign (Sheekey: 80, 87; Harris: 243; Bloomberg: 352), so Sheekey solicited defendant’s participation in the 2009 campaign (Sheekey: 80-81). Although the Mayor paid his campaign advisors handsomely, defendant had always refused to take a salary, and he remained a volunteer in the spring of 2009 as -10- he worked on the mayoral primary (Sheekey: 80-82, 87-88, 127, 158; Harris: 241-242, 263-264; Bloomberg: 351, 363; Reid: 588). Meanwhile, defendant found himself under increasing pressure to come up with a large sum of money, because he wanted to buy out his brother Bart Haggerty’s share of their childhood home, which they had jointly inherited. Bart was anxious to sell, and beginning in the late spring, Bart’s lawyer, JOHN KRAMER, informed defendant “several times” that he would need over $1 million at closing (Kramer: 616- 621, 631-632, 637-638; 1018). On August 19, 2009, as defendant’s work on the primary was winding down, Sheekey asked defendant to stay on to handle ballot security for the November election (Sheekey: 82-87, 183-184; Bloomberg: 363-364). That evening, defendant emailed Sheekey that he had been “thinking all day” about Sheekey’s request. He playfully lamented that he had fallen victim to Sheekey’s characteristic persuasiveness, and he volunteered his help “quite readily” (Sheekey: 82-88; People’s Exh. 1: 1519). At some point shortly thereafter, Sheekey and defendant discussed having defendant orchestrate a ballot security operation through the Independence Party instead of the Republican Party, since the Mayor had changed his party affiliation. Sheekey suggested that, similar to what was done in 2005 with the Republican Party, the Mayor might transfer to the Independence Party’s housekeeping account an amount sufficient to pay for defendant’s ballot security plan plus an additional $100,000 as a contribution to the Party (Sheekey: 104, 108-109, 117-118, 209, 212). -11- Before the end of August, defendant contacted Independence Party Vice Chair THOMAS CONNOLLY. Over the course of a few conversations, defendant conveyed to Connolly the Mayor’s willingness to transfer $1.2 million to the Independence Party, provided that the Independence Party would pay a consulting or corporate vendor of defendant’s choosing $1.1 million of that money to implement the ballot security initiative. The excess $100,000 would be a donation to the Independence Party (Connolly: 648-650, 653-656, 720). By September, it was generally understood among the Mayor’s staff that defendant was arranging ballot security, but funding still had not been formally approved (Sheekey: 89, 121-122; Harris: 246-248, 280-281; Jaffin: 433, 450, 457; Reid: 587). On September 28, defendant forwarded an article about voter fraud to Sheekey, copied to campaign manager Tusk, and remarked, “Can you say ballot security …..” Tusk replied, “[W]here does our project stand?” Defendant answered that it was “[o]n track. Just needs the funding” (Sheekey: 88-91; People’s Exh. 2: 1520). Also in September, defendant began dating Reid, the campaign’s chief financial officer (Reid: 590).3 On October 6, defendant emailed Sheekey asking him to “fund ballot security ASAP.” Sheekey expected that funding would be forthcoming, but absent a budget, 3 The affair continued until the investigation began in 2010, when Reid broke off the relationship pursuant to her attorney’s advice (Reid: 591). -12- he did not know precisely how much would be approved (Sheekey: 91-93, 104; People’s Exh. 3: 1522). In mid-October, Patricia Harris and Bradley Tusk met with defendant to discuss ballot security. Defendant explained that he would “work with the Independence Party to run a ballot security operation” similar to the one provided by the Republican Party in 2005, and that it would cost “about the same amount” (Harris: 242). The Mayor would transfer $1.1 million to the Independence Party, and the Independence Party would in turn pay for the ballot security costs.4 Like Sheekey, Harris trusted defendant, and in reliance on defendant’s “plan and his word,” Harris “generally approve[d] that cost and idea” – but the money was not yet transferred (Sheekey: 104-106; 225-226; Harris: 242-244, 268, 277-278, 284-285). Harris withheld formal approval of the funding until defendant could provide a “breakdown of how the money would be spent” (Sheekey: 102, 108, 209, 213; Harris: 243-244). Shortly before 1 a.m. on October 27, 2009, realizing that he had to “present a budget and a plan” in order to get the Mayor’s approval (Sheekey: 120), defendant 4 Around this time, defendant and Connolly orally agreed that defendant would engage a vendor to arrange for ballot security and the Independence Party would pay the vendor up to $1.1 million. But rather than lining up a vendor, defendant telephoned his old friend DAVID CATALFAMO, a political consultant in Albany, and asked whether he might use Catalfamo’s office address to “setup a LLC.” Catalfamo agreed (Connolly: 688-689, 746; Catalfamo: 841-844). A written agreement, dated October 15, 2009, was not actually signed until January 2010, and it specifically named the vendor as “Special Elections Operations, LLC.” The terms of the agreement reflected the oral understanding that defendant and Connolly reached in October (Connolly: 684, 688-689, 746; People’s Exh. 21: 1552-1553). -13- emailed Harris and Sheekey (Sheekey: 102-108, 209, 211; Harris: 244, 268, 289). In that email, defendant assured them that the Independence Party was “fully cooperative” with his ballot security plan. He falsely claimed that “many of the [ballot security] contracts were signed” already and that “the invoices were now due so we need to do this as quickly as possible.” Defendant supplied the bank account information for the Independence Party’s account and concluded, “The money needs to be wired as soon as possible” (People’s Exh. 5: 1523). Defendant attached to this email a description of the ballot security plan, a general budget for 2009 ballot security operations, and a comparison of the 2009 budget to 2001 and 2005. According to his proposal, defendant would hire 1355 paid poll watchers to staff every poll site, and he would assemble 200 roving “teams” of paid and unpaid lawyers, poll watchers, and drivers to patrol the sites. This would come at an estimated cost of $1.1 million, as compared to about $1 million in 2001 and 2005 (People’s Exh. 5: 1524-1526). Harris and Sheekey still wanted a more detailed breakdown of the costs, such as “[w]hat people would be paid, how much cars would cost, gas, that kind of thing.” They wanted to be sure that the Mayor understood how his money would be spent (Sheekey: 120-121; Harris: 244-248; People’s Exh. 6: 1527). Thus, on October 28, defendant met with Mayor Bloomberg, Sheekey, Harris and Tusk (Sheekey: 122-123; Harris: 247, 285-287; Bloomberg: 323, 366). Defendant explained that he would do “pretty much” what was done in 2005. He estimated that it would “cost about the -14- same, maybe a little more,” and he assured them that he was “working on it” and not to worry because he had it “covered” (Harris: 247). Sheekey relied on defendant’s knowledge of ballot security and on his “representation of exactly what would occur,” and he recommended that the Mayor approve the funding (Sheekey: 104-105, 110- 111, 121-123). But Harris still wanted more “specific details on how the money would be spent” (Harris: 248; 291-293). That evening, defendant emailed Sheekey again, urging him to “get money to IP for ballot security” and falsely representing that he was “way out there” as far as ballot security expenses he had already incurred (Sheekey: 110, 125-126; People’s Exh. 8: 1529). The next morning, October 29, defendant emailed Sheekey again, begging him, “You need to confirm back to me that you are taking care of the [ballot security] money TODAY! PLEASE.” Sheekey forwarded defendant’s email to Jaffin (Sheekey: 123-124; People’s Exh. 7: 1528). Also around this time, defendant asked Reid what level of detail Harris and Jaffin would need in order to approve the funding. Reid suggested that defendant provide as much detail as he could (Reid: 592, 605-608). On the afternoon of October 29, defendant forwarded Jaffin his October 27 email to Harris and Sheekey, asking her to arrange for the Mayor’s “personal contribution to the [Independence Party’s] Housekeeping account.” In an email exchange thereafter, defendant confirmed that the cost of the “operation” would be -15- about $1.1 million, or “slightly less,” and that an additional $100,000 contribution might be added (Jaffin: 434-435; People’s Exh. 9). The next morning, October 30, Jaffin emailed defendant asking him to meet her at 12:30 p.m. to further itemize the expenditures (Jaffin: 436; People’s Exh. 9: 1530). Sheekey asked Reid to attend the meeting as well, to “see that the numbers added up” (Reid: 591-592, 607). At 12:39 p.m., defendant stalled, reporting that he would be “finished in 10 mins”; Jaffin and Reid finally met defendant at about 12:45 p.m. and for the first time saw an itemized budget (Jaffin: 437-438, 441-442, 456, 477, 498; Reid: 592-593, 606, 609; People’s Exhs. 9-10: 1530-1533). Among other things, defendant falsely reported in that budget that the expenses covered a seven-week period from September 14 to November 6, including $30,000 for a director; $60,000 for six “coordinators” at $10,000 each; $60,000 for renting offices in Albany and New York City; $10,000 for supplies; $150,000 for an “absentee and voter tracking program”; $474,250 for 1355 poll watchers to be paid $350 each; $138,000 for 230 drivers at $500 each; 25 additional “election day staff” at $500 each; and $142,000 for various other election day expenses such as catering, gas, and hotel rooms (Jaffin: 437- 438, 441-449; Reid: 593-594; People’s Exhs. 10-11: 1533-1538). Based on those false pretenses, Jaffin and Reid believed that defendant had already incurred about a third of the proposed $1.1 million in expenses and that the total cost would be about what defendant claimed (Jaffin: 446-447, 450-452, 478-481, 485, 497-498; Reid: 594-597, 609, 612). Thus, they approved the proposal and -16- emailed Geller & Company employee Diane Rizzo with instructions to transfer the Mayor’s money (Jaffin: 451, 494; Rizzo: 560-561; Reid: 597). In a memorandum dated October 30, 2009, Rizzo instructed her office to wire $600,000 from “Michael Bloomberg’s” account to the Independence Party’s housekeeping account. $600,000 originating from the “Michael R. Bloomberg Revocable T.” was then deposited into the Independence Party housekeeping account. Another $600,000 followed on November 2, totaling $1.2 million (Bloomberg: 326-328, 388, 394, 401, 423; Jaffin: 451, 456-457, 494; Rizzo: 533-541, 555-556; Connolly: 656, 676, 724; District Attorney’s Office Financial Investigator MATTHEW PAUL: 854, 857-867, 891, 900-901, 915; People’s Exhs. 12-13, 25A-C: 1539-1540, 1615-1619).5 As soon as the first wire transfer came in, Connolly provided defendant with a form for defendant to give poll watchers so that they could obtain their pay for Election Day. Connolly also provided defendant with seven blank checks to pay vendors from the Independence Party account (Connolly: 657-661, 682-683). On November 3, 2009, the Mayor won the election. Over the next few days, five of the seven checks Connolly had given defendant were endorsed to pay 5 Lawyer MARJORIE JANE FRIDAY drafted the document creating the revocable trust account from which the Mayor, through his aides, ordered the transfers. Friday confirmed that Mayor Bloomberg was indeed the owner of that account (Friday: 1046-1055). -17- $31,756.50 in ballot security expenses; defendant returned the other two checks unused (Connolly: 726-729; Paul: 883-886, 907-908). Less than a week later, defendant was proceeding apace with the purchase of his father’s house. On November 9, John Kramer – defendant’s brother Bart’s real estate lawyer – prepared a contract of sale under the terms of which defendant would make a down payment of $80,000 toward a purchase price of $1.6 million with the remaining $1.52 million plus additional closing costs (less an $800,000 credit for defendant’s half-equity in the home) due at closing. The contract contemplated a closing date of December 7 (Kramer: 621-628, 646; People’s Exh. 28: 1655). On November 24, defendant had Connolly transfer $83,000 for ballot security expenses to defendant’s personal bank account, which contained only $176.58. Defendant told Connolly that he had to use his personal account because the ballot security vendor’s corporation had not yet been set up (Connolly: 662-664; Paul: 868- 869; People’s Exhs. 15, 24A, 25D, 25L: 1541, 1593, 1620, 1628). Defendant then promptly signed the contract of sale on his father’s house and endorsed a check for $80,000 to his father’s estate for the down payment (Kramer: 622-623; Paul: 869; People’s Exhs. 24B, 28: 1594, 1658). On November 29, the contemplated closing date was extended to on or before December 18, with “time being of the essence” (People’s Exh. 28: 1657). On December 3, defendant emailed Connolly asking whether he could “do a transfer tomorrow,” and Connolly, again under the impression he was paying ballot -18- security expenses, agreed. The next day, Connolly had $50,000 wired to defendant’s personal account (Connolly: 665-667, 671; People’s Exh. 16, 25E, 25L: 1542, 1621, 1630). Later that day, defendant wired $50,000 to his brother Bart, and Bart signed the contract of sale (Kramer: 622; Paul: 868-870, 881-882; People’s Exhs. 24A, 26, 28: 1593, 1651, 1658). At about the same time defendant was finalizing the contract to buy his father’s house, he set up codefendant Special Elections Operations (“SEO”). On December 1, defendant emailed his friend Catalfamo and again asked whether he could use Catalfamo’s address “for an LLC” because defendant’s own Albany apartment was “too obvious.” Catalfamo consented (Catalfamo: 841-842, 850; People’s Exh. 34: 1668). On December 3, defendant incorporated SEO, naming himself as “the sole member” (Paul: 870-871; 1019; People’s Exh. 54: 1688-1696). In an invoice dated December 9, 2009, SEO billed the Independence Party $750,000 “for November 2009 Election Poll Watcher Plan,” requesting that the money be remitted “promptly by wire” (Connolly: 668-670; People’s Exh. 17: 1543). That same day, defendant opened a business checking account for SEO at TD Bank in Queens, with $20 in the account and defendant as the only signer (Paul: 871; People’s Exh. 23A: 1554). At 10:48 p.m., defendant emailed Connolly requesting that the $750,000 be paid by Friday, December 11. Regarding SEO’s use of a Queens bank account, defendant explained that he “had them open” a Queens account notwithstanding the Albany corporate address in order to “pay people and operate -19- from” it. Defendant also assured Connolly that he would document the ballot security expenses before January 15, which was the date the Independence Party would have to disclose the $1.2 million transfer. Connolly trusted defendant and processed the transfer on December 11 (Connolly: 671-675; Paul: 872, 882, 911; People’s Exhs. 18, 23D, 25E: 1544, 1576, 1621). On the same day that SEO received the $750,000, defendant wired another $400,000 into his personal account from an undetermined source (People’s Exh. 24G: 1601). That left defendant with about $1.15 million at his disposal – enough to buy his father’s house. Four days later, on December 15, 2009, defendant wired $546,545.97 from the SEO account and $400,000 from his own account to fund the purchase of the house (Paul: 873; People’s Exhs. 23E, 24G, 27A-B: 1558, 1577, 1601, 1652-1654). The next day, December 16, defendant wired $52,000 from the SEO account to his brother (Paul: 874; People’s Exhs. 23E, 26: 1558, 1651), and on December 17, defendant closed on the house (Kramer: 619, 628-631; People’s Exh. 29: 1664-1666). On January 11, defendant emailed Connolly a list of the five Independence Party checks he had written to cover ballot security expenses (People’s Exh. 19: 1547). On January 13, defendant emailed Connolly reminding him that the Mayor had transferred $1.2 million to the Independence Party in order that $1.1 million would be paid to SEO for ballot security with $100,000 remaining for the Independence Party. -20- Defendant informed Connolly that in addition to the $750,000 already transferred to SEO, another $350,000 would be due (Connolly: 677-681; People’s Exh. 20: 1548).6 On January 15, the Independence Party made its disclosure reporting the Mayor’s $1.2 million transfer to the Party and the Party’s $750,000 transfer to SEO (Connolly: 724-725; Paul: 911). On January 22, defendant emailed Catalfamo requesting that “[i]f anybody calls about that company at your address do not call back until we talk. Its [sic] called Special Elections Operations LLC” (Catalfamo: 841, 844-845; People’s Exh. 34: 1668). On February 1, 2010, New York Post reporter David Seifman emailed the Mayor’s campaign lawyer, KENNETH GROSS, and asked for the names of “the officers/members” of SEO and the person who “cashed the check for 750G.” He also asked for a description of the poll watching operation and for copies of “2 or 3” payroll stubs. Gross forwarded the email to defendant. Defendant replied that he was the only member of SEO so that he had “total control of it.” He noted that the $750,000 had been deposited in SEO’s account so that “checks could be written from the account” and said that the total would be settled “when it’s all completed.” Defendant claimed that of the 1355 poll sites, about 300 had full-time poll watchers 6 Regarding the $133,000 that the Independence Party had given defendant directly for ballot security expenses, defendant wired $135,000 from SEO’s account into his own personal account, leaving about $3100 in SEO’s account (Paul: 878; People’s Exhs. 23I, 24F: 1562, 1598). Defendant then refunded $133,000 from his personal account to the Independence Party account (Connolly: 730, 746; Paul: 878-879; People’s Exh. 25F, 25L: 1622, 1634). -21- and another 500 were “on a route.” He also agreed to provide the requested documents (People’s Exh. 37: 1671). Gross asked defendant “to produce as many doc[ument]s as possible in short order,” and defendant agreed (People’s Exhs. 40-41: 1672-1673). At 5:49 p.m. that same day, Gross emailed the reporter with the answers and said that copies of “stubs” would be sent soon (Gross: 761-773; People’s Exh. 43: 1675). Around this time, defendant contacted lawyers Thomas Sipp and Joseph Kasper, who had volunteered as poll watchers on Election Day, and offered them $500 each for their work. He also told them that a reporter from the New York Post might call (Sipp: 937-943, 948-949, 954; Kasper: 958-960). At 6:52 p.m., defendant emailed Gross copies of what defendant claimed were “checks and stubs to three poll workers” (People’s Exh. 44: 1676). Each check was from “Special Election Operations LLC,” dated December 20, 2009, in an amount of $500, and they were made out to “Tom Sipp,” “Keith Hunter” and “Joseph Kasper.” Gross forwarded electronic copies to Seifman (Gross: 774-781, 829; People’s Exh. 45: 1677). On February 2, Seifman emailed Gross to say that most of the $750,000 would still be unaccounted for even if all 300 full-time poll workers were paid $500 each (People’s Exh. 46: 1679). Gross forwarded the email to defendant and asked him “how much is left over” (People’s Exh. 47: 1680). Defendant replied, “Yep. Let me work on it” (People’s Exh. 48: 1681). A few hours later, defendant emailed Gross that there was “probably 100 to 125K left in the account” with some more expenses -22- “left to pay”; he also offered a list of expense categories but “did not have the breakdown yet” (Gross: 781-789; People’s Exh. 49: 1682). As late as February 3, 2010, defendant – in the house he had bought with the Mayor’s money for months – still falsely claimed to have spent $600,000 on ballot security “[a]s of now” (People’s Exh. 52). In response to Seifman’s continued investigation, the Mayor’s agents pressed defendant for a better accounting, but they never got it (Bloomberg: 325, 409- 411; Gross: 783-784, 790-794; People’s Exh. 50-53: 1684-1687). Later in February, MATTHEW PAUL, a financial investigator for the New York County District Attorney, was assigned to figure out what happened with the $1.2 million the Mayor had transferred to the Independence Party. Investigator Paul determined that the money was impossible to track using only the publicly available documents. It was not until Investigator Paul reviewed the bank records of the Independence Party, SEO, and defendant – which were obtainable only by court order – that he discovered that $750,000 of the Mayor’s money had been used to buy defendant’s father’s house, and that only about $32,000 had been spent on ballot security (Paul: 854-894, 900-918; People’s Exh. 32: 1667). Defendant never told Sheekey, Harris, Jaffin, Reid or the Mayor that the “vendor” that would be paid for ballot security would be a shell corporation solely owned and controlled by defendant. Defendant also failed to disclose that most of the money that the Independence Party received from the Mayor would be transferred to that shell corporation in order to purchase a $1,600,000 home for -23- defendant rather than to pay for the ballot security expenses defendant had detailed but never incurred. The Mayor and his aides “absolutely” would not have approved the $1.2 million transfer had defendant told them the truth (Sheekey: 104-105, 109- 120, 127-128, 208, 211-212; Harris: 242-243, 248-251; Bloomberg: 323-325, 366-368, 394-395, 415-417, 421; Jaffin: 454-455; Reid: 588, 594, 598-599, 611). Defendant’s Case Defendant called Mayor Bloomberg’s 2009 campaign manager, BRADLEY TUSK, who confirmed the arrangement that ballot security was to be run outside the campaign by the Independence Party (Tusk: 1081-1091, 1120). According to Election Lawyer HENRY BERGER, conducting ballot security in that fashion was illegal, although he could not cite authority for his position (Berger: 1127-1147).7 Defendant also called his friends KAREN PERSICHELLI KEOGH and MICHAEL AVELLA, political consultants who testified that defendant did coordinate some ballot security operations on Election Day, albeit on a much smaller scale than promised and involving mostly unpaid workers (Avella: 1156-1168; Keogh: 1186-1199). After the election, Tusk emailed defendant that he had done a “great job” (Tusk: 1102-1103), but at the time he had no idea that defendant had used the ballot security money to buy himself a house (Tusk: 1104, 1107, 1112-1119). 7 On October 18, 2012, the Campaign Finance Board found, upon reviewing the record of defendant’s trial, that the ballot security funding did not violate the election law in effect at the time. http://www.nyccfb.info/act-program/fd/FD_2012_1.htm (accessed December 20, 2013). -24- POINT TESTIMONY BY A LAWYER WHO DRAFTED THE BLOOMBERG REVOCABLE TRUST THAT THE MAYOR OWNED THE MONEY IN THE TRUST DID NOT VIOLATE THE BEST EVIDENCE RULE. IN ANY EVENT, THAT TESTIMONY WAS HARMLESS, BECAUSE THE MAYOR'S OWNERSHIP OF THE MONEY WAS OVERWHELMINGLY PROVED. At defendant’s trial for stealing Mayor Michael R. Bloomberg’s money, Mayor Bloomberg’s advisors chronicled defendant’s fervent efforts to persuade them and the Mayor to approve the expenditure of over a million dollars of the Mayor’s money for an elaborate ballot security operation that, as it turned out, defendant had no intention of undertaking. Instead, defendant sought to divert the money to himself, so he could buy out his brother’s half of the Forest Hills home that they had just inherited from their father. Defendant’s efforts succeeded, and the Mayor approved the transfer of $1.2 million to fund defendant’s bogus proposal. Almost immediately upon that approval, that sum was transferred from the Michael R. Bloomberg Revocable Trust in accordance with defendant’s scheme and, in short order, defendant used the stolen funds to buy the house. Throughout all this testimony, defendant never suggested by his cross- examination or otherwise that Mayor Bloomberg was not the owner of the money he ordered transferred. Indeed, notwithstanding that defendant had been provided with the bank records before trial indicating that the money came from the Bloomberg Revocable Trust, neither defendant nor the People asked the Mayor’s advisors or -25- accountants any questions about the trust account or the Mayor’s ownership of it. Only when the People’s fraud investigator admitted during cross-examination that he did not know how to determine the owner of the money in the trust account did defendant suggest that the Mayor might not own it, and the People thereafter called a lawyer who had drafted the Mayor’s will – which created the trust – to confirm that he owned the money. Now, urging the application of the “best evidence” rule, defendant contends that the People should not have been allowed to elicit from the lawyer who had drafted the terms of the trust that Mayor Bloomberg owned the money transferred from the trust account (DB: 9-13). Apparently, on defendant’s view, the fact that Mayor Bloomberg owned that money could be proved only by the trust document itself. As we now demonstrate, given the context of how the Mayor’s will was put in issue, the trial court’s admission of the attorney’s testimony was a perfectly reasonable evidentiary ruling that had nothing to do with the best evidence rule. Moreover, the question of whether the testimony should have been admitted is academic because, even if wrongly admitted, it had to have been harmless. Indeed, even the total exclusion of both the challenged testimony from the Mayor’s lawyer and the trust document itself would not have made a whit of difference to the outcome of the case, because there was ample independent proof that the money transferred from the trust account at the Mayor’s direction belonged to the Mayor. -26- A. Defendant was indicted for stealing Mayor Bloomberg’s money by making false representations and promises to get the Mayor to provide funding for Election Day expenses that defendant knew would never be incurred. Before trial, the defense reviewed financial documents that eventually were introduced into evidence, the most pertinent here being the records reflecting the two $600,000 transfers from the “Michael R. Bloomberg Revocable Trust” to the Independence Party (1026-1027, 1033; People’s Exhs. 12-13, 25A-C: 1539-1540, 1615-1619). During his opening statement, defendant predicted that the evidence would show that the Mayor indeed transferred this money, but not in reliance on anything defendant had said (see, e.g., 60, 62-64, 66, 72). During the People’s case, as outlined in more detail supra at pp. 11-16, the Mayor and his authorized agents testified as to how, over the course of almost a month, defendant gradually presented them with an incrementally more detailed accounting of a proposed ballot security initiative in an increasingly ardent effort to induce the Mayor to turn over $1.2 million. Then, literally within minutes after the October 30, 2009, meeting at which the Mayor’s advisors finally approved the funding, the Mayor’s financial agents ordered the first of two $600,000 transfers from the Bloomberg Revocable Trust to the Independence Party, followed soon after by the second. Defendant to this point never suggested – by cross-examination of the Mayor or his advisors, by reference to bank records, or otherwise – that Mayor -27- Bloomberg did not own the $1.2 million that the Mayor’s financial agents transferred from this account. Near the end of the People’s case, Financial Investigator Matthew Paul testified, primarily to explain how the paper trail led investigators to defendant. During cross-examination, defendant’s attorney asked Investigator Paul whether “to determine whose money it is you need to look at the trust documents.” Paul did not know, and defendant elicited that Paul likewise did not know anything about the terms of the trust (Paul: 900-903). Following Investigator Paul’s testimony, the Assistant District Attorney observed that the defense cross-examination of Paul appeared to be questioning whether the money in the trust account “really did belong to Mayor Bloomberg.” The prosecutor noted that “Mayor Bloomberg testified it was his money,” that “all the other witnesses with any knowledge testified that it was his,” and that the defense theory had thus far appeared to be not that the Mayor did not own the money, but “that this was a donation … from Mayor Bloomberg’s account” (1010-1011). The prosecutor also noted that the investigator was not “qualified to give a view” of whether the trust corpus, in fact, “belongs to” the Mayor (1011). Thus, in order to dispel any confusion caused by defendant’s questioning of Investigator Paul, the prosecutor sought a stipulation that the money in the trust belonged to the Mayor. But defendant’s attorneys would not stipulate to that fact; they asked instead to see the document establishing the trust (1010-1013). -28- The court suggested that the People call a witness who could testify that the Mayor “could authorize the payment from that trust account,” because that would be “the end of [defendant’s] issue, I would think” (1013-1014). Defendant complained that he still would not be satisfied without seeing the trust document, because the People had charged defendant with stealing the Mayor’s personal money, and the fact that the money came from a trust meant that the People had “missed who [the] owner of the money is” (1015-1016). The prosecutor answered, “The owner is Michael Bloomberg. We didn’t miss who the owner is. We know it. The defense knows it.” The prosecutor thus asked to “bring in a witness to testify as to this particular account” (1016). The court adjourned the trial to the next day for the People to obtain a witness. The next morning, still seeking to capitalize on Investigator Paul’s ignorance of trust law, defendant argued that “why we want this document in the record” is to establish that the trust “is a separate legal entity” from the individual named Michael Bloomberg (1032). The prosecutor responded that the money was “transferred from the Michael R. Bloomberg Revocable Trust account” and added that the “money belongs to Michael R. Bloomberg” (1033). The prosecutor also informed the court that an attorney who was “among the drafters of the trust” was available to testify that Bloomberg owned it. However, the trust was created by provisions within the Mayor’s will, and for privacy reasons the Mayor – who had testified at trial and thus had been available to answer any questions the defense may have had about his -29- ownership of the trust – did not wish to make his will public and balked at producing the entire contents of his will voluntarily (1022, 1028-1029, 1040, 1042). Defendant complained that the People’s case suffered a “deficiency” absent production of the trust document, and the People countered that there was no deficiency (1034-1035). Nonetheless, the Mayor voluntarily produced for the parties’ inspection a redacted portion of the will pertaining to his ownership of the trust, which set forth the fact that the Mayor was the sole grantor and trustee of the trust (1035-1036, 1039-1040). Addressing the defense red herring that Paul’s testimony suggested that the Mayor might not own the money in the trust, the prosecutor acknowledged that the “terms of the trust make it clear” that the Mayor owns the money, and noted that a “witness will [also] make it clear” (1033). Defendant’s attorneys, although admitting that they did not know much about trust and estate law, expressed “anxiety” over the use of a “redacted version” of the trust (1037-1038). The prosecutor suggested that defendant could ask the witness any questions he had about the trust, but defendant complained that he did not want to cross-examine without the entire document (1038-1039). The court suggested keeping the entire, unredacted will under seal, but the People were unwilling to subpoena the unredacted document. The court observed that all the parties knew before trial that the money came from the trust account, so “[t]he defense, as well as the prosecution could have subpoenaed” the will if they had felt it was important -30- (1039-1040). Defendant thereafter insisted that the People should subpoena the will, but defendant did not ask the court to sign a subpoena (1041-1042). Accordingly, the People called Marjorie Jane Friday, an attorney and the “principal draftsperson” of the Mayor’s will. To assure that defense counsel would be able to cross-examine Friday adequately about the trust, the defense team retained the redacted portion of the will for use while cross-examining her (1042-1044). On direct examination, the People did not ask Friday to recite the contents of the trust instrument, or the terms of the trust. Instead, after ascertaining Friday’s involvement in the creation of the Michael R. Bloomberg Revocable Trust for the Mayor, the prosecutor asked simply “who owns the money” in the trust – and Friday answered that Mayor Bloomberg owned it (Friday: 1047-1048). Defendant objected to this testimony on the ground that the “best evidence rule applies” to require that the “document is what should speak for this instead of a hearsay person.” The court overruled the objection (1048). On cross-examination, defendant elicited that a trust “is a separate legal entity” from its trustee, and that while Mayor Bloomberg owns the trust, he and the trust are still “separate legal entities” (Friday: 1049-1053). Defendant also elicited from Friday some of the terms of the trust, such as the fact that the Mayor was the sole trustee, and that the “grantor” of the trust had the power to do anything he wished with the money (Friday: 1051-1053). Friday clarified during redirect examination that Mayor Bloomberg was the grantor (Friday: 1053-1054). -31- B. On appeal, defendant complains that the admission of Marjorie Friday’s testimony ran afoul of the best evidence rule because she should not have been permitted to testify about the terms of the trust document she had drafted. But, defendant misses the point of both Friday’s testimony and the best evidence rule. Friday was not called to establish the terms of the Mayor’s trust. She was called to testify from her personal knowledge that the Mayor owned the money in the trust account – a fact she knew independently of the terms of the trust – to rebut defendant’s late-trial insinuation during Investigator Paul’s testimony that the Mayor might not own the money transferred from the account. Moreover, the best evidence rule comes into play only when the terms of a document are in dispute. Finally, error or not, the admission of Friday’s testimony could not possibly have affected the verdict because there was simply no conceivable doubt based on the entirety of the proof that the money taken from the trust account belonged to Mayor Bloomberg. As this Court has lamented, the “best evidence rule” is “oft-mentioned and much misunderstood.” Schozer v. William Penn Life Ins. Co., 84 N.Y.2d 639, 643 (1994). The rule indeed “requires the production of an original writing” in preference to a copy or other “secondary evidence” of it, but only in situations “where its contents are in dispute and sought to be proven.” Id; see People v. Joseph, 86 N.Y.2d 565 (1995); Trombley v. Seligman, 191 N.Y. 400, 403 (1908). The rule hearkens back to times when handmade copies of documents were apt to differ from the originals, rendering the -32- original the “best evidence” of the precise wording of any document whose contents might be in dispute. Schozer, 84 N.Y.2d at 643-644. Of course today, accuracy is less of a problem; pristine physical and electronic copies are so perfectly made that they often can hardly be distinguished from an original, and the accuracy of such copies is rarely in doubt. Thus, even two decades ago, this Court had already observed that “[g]iven the technological advancements in copying, in modern day practice the rule serves mainly to protect against fraud, perjury and ‘inaccuracies … which derive from faulty memory.’” Id. (citations omitted). Accordingly, the rule has no application when an original document’s contents are not actually in dispute. For example, when a clear copy exists and the parties are not disputing what the original says, the rule does not preclude evidentiary use of the copy. See, e.g., People v. Dicks, 100 A.D.3d 528 (1st Dep’t 2012) (no violation of best evidence rule where People introduced copies of tapes instead of the original: “since the contents of the tapes were not in dispute, the best evidence rule did not apply”); Billingy v. Blagrove, 84 A.D.3d 848 (2nd Dep’t 2011) (no violation of best evidence rule where “the plaintiff did not dispute the existence of the defendant’s affidavit, or the accuracy of the relevant portions of the reproduction”); People v. Hamilton, 304 A.D.2d 500, 501 (1st Dep’t 2003) (“Because the contents of the rental contract were not in dispute and were collateral to the issues, the best evidence rule did not apply”); Chamberlain v. Amato, 259 A.D.2d 1048, 1049 (4th Dep’t 1999) (no violation of best evidence rule where “[d]efendant admitted the existence and essential terms of the -33- note in his pleadings and testimony, and he and another witness identified defendant’s writing and signature on the copy of the note”); LaRue v. Crandall, 254 A.D.2d 633, 635 (3rd Dep’t 1998) (no violation of best evidence rule where “during cross- examination petitioner was shown the photocopy of the letter, admitted that he wrote it to respondent and acknowledged making the statements contained therein”). In other words, the best evidence rule is not offended where the content of the original writing – even though not admitted into evidence – is known to the parties and is not the subject of meaningful dispute. Likewise, as noted, the rule has no application where a party independently proves a fact that happens to be found within a document, without seeking to prove the document’s terms. Schozer, 84 N.Y.2d at 643. The happenstance that a document might tend to prove a particular fact does not mean that the same fact cannot be proved independently by other competent evidence. See Harmon v. Matthews, 27 N.Y.S.2d 656, 662-663 (Sup. Ct., Bronx County 1941) (“even if a fact has been recorded by being reduced to writing, the fact may be proved independent of the writing”) (cited approvingly in Schozer, 84 N.Y.2d at 645). Such an interpretation of the best evidence rule would be preposterous; many facts are reduced to writing somewhere, and it cannot be that the mere recording of a fact in a document suddenly precludes proof of the same fact by the testimony of a witness who happens to know it. -34- Under those principles, the best evidence rule does not apply here, and it certainly was not violated. To begin, the trust document itself was never at issue in this case; the trial was about whether defendant stole money from the Mayor. The evidence, summarized supra, overwhelmingly established that defendant deliberately and persistently offered up a series of lies to the Mayor and his advisors in an unabashed effort to persuade the Mayor to cough up over a million dollars, all the while hiding that defendant’s true purpose was to divert the money to purchase himself a very nice house. The advisors and the Mayor testified that they approved the expense on defendant’s false representations, and collectively those witnesses testified that the money was transferred, on the Mayor’s order, out of the trust account. Defendant’s theft by false promises and pretenses was thus the issue in the case, and the terms of the trust were not. Because the terms of the trust were not “in dispute and sought to be proven,” Schozer, 84 N.Y.2d at 643, the best evidence rule does not apply. Nonetheless, defendant complains that the admission of Marjorie Friday’s testimony ran afoul of the best evidence rule because she was permitted to testify about the terms of the trust document, but he completely misses the point of Friday’s testimony. Friday was called simply to rebut defendant’s confusing insinuation during the cross-examination of Investigator Paul – near the end of the People’s case, after Mayor Bloomberg and his advisors had already testified – that Bloomberg might not technically own the money in the Bloomberg Revocable Trust. This was far from a -35- “deficiency in [the] proof” as defendant would have it (DB: 7). As noted, there was already more than ample evidence in the record to support the unremarkable proposition that the Mayor owned the $1.2 million that was transferred at his direction from the trust account bearing his name. But a trial prosecutor may wish to address even frivolous insinuations, because he is not bound to present the bare minimum of sufficient proof, see People v. Alvino, 71 N.Y.2d 233, 245 (1987), and because trial litigators are always sensitive to the danger that extraneous issues might divert a jury’s attention from the real issues in the case. Thus, the Assistant District Attorney attempted to arrange a simple stipulation to the obvious proposition that the money belonged to the Mayor, but defendant’s attorneys insisted on seeing the document creating the trust to answer this question. It was for this reason that the relevant portions of the trust document were made available for defense inspection. The People, however, never sought to offer the trust document into evidence or to prove its terms by any other means. The prosecutor did nothing more than to ask the witness who created the trust for the Mayor the rather basic question of who owned the money in the trust. Having drafted the document creating the trust, Friday obviously had personal knowledge that the trust corpus was indeed Bloomberg’s and not someone else’s. And the question that mattered was whether Mayor Bloomberg owned the money out of which he was duped, not the nuances in the wording of a financial product he used to manage that money. There was thus no significance to -36- the precise wording of the document itself – let alone any dispute about that wording – and no reason to apply the best evidence rule. To be sure, the trust document would also have reflected the Mayor’s ownership of the corpus, but the trust document was not the only way to know whether the Mayor owned the money in it. After all, the trust document’s reflection of that fact does not render Friday’s independent testimony about the same fact somehow incompetent. See Harmon v. Matthews, 27 N.Y.S.2d at 662. Indeed, the Mayor himself could just as easily have testified that he owned the corpus of the trust, had anyone bothered to ask him – but as the Assistant District Attorney remarked, the Mayor’s ownership of the money had never been made an issue. As noted, the terms of the trust itself were not being litigated at all, and there was no significance to the precise wording of the document. There was also no danger of fraud pertaining to the contents of the document, given that its terms were not the subject of Friday’s direct testimony and that the document was in the hands of defense counsel as they cross-examined her. Thus, the best evidence rule has no application to this case. Defendant seeks to set up a straw man by painting the trial issue as “whether ‘[Mayor] Bloomberg could authorize the payment from that trust account” (DB: 2), thereby implying that the People sought to prove the terms of the trust pertaining to the authorization of payments. But the People did not ask Friday to explain the terms of the trust to prove that the Mayor was acting within those terms when he transferred the money to the Independence Party; indeed, the People had already -37- proved that the Mayor and his agents did make the transfers, so whether or not they did so in conformity with the provisions of the trust document was beside the point. It was defendant who delved into the terms of the trust on cross-examination, in an apparent fishing expedition for evidence that the Mayor’s transfers were inconsistent with the terms of the trust or with campaign finance law – a theory not even at odds with the Mayor’s ownership of the money he transferred, and more reflective of a bid for nullification by portraying the Mayor’s dealings as questionable.8 Indeed, defendant pursues the same tack on this appeal, hoping to portray the Mayor as a well-heeled victim whose reluctance to disclose his private will suggested a belief that “[b]eing mayor has its privileges” (DB: 11) that place him “above the law” (DB: 12). Thus, on defendant’s view, the prosecutor and the court mistakenly thought they lacked “authority” to subpoena the will (DB: 10, 13), that it was “beyond the reach” of legal process (DB: 10), and that it was “available only as a matter of grace” (DB: 10). This smokescreen got defendant nowhere at trial or in the Appellate Division, and it should get him no further in this Court. The Mayor was entitled to value his privacy, as any witness would be, and even defendant declined to challenge the Mayor’s privacy by asking for a subpoena. No doubt this was because the 8 As noted supra at p. 23, n. 7, defendant’s efforts throughout the trial to paint the Mayor’s financing of ballot security as legally improper ultimately came to naught, when the Campaign Finance Board held that the Mayor had complied with the law. -38- Mayor’s private estate plan had no relevance to the issues at trial, not because the Mayor was immune to legal process or the rules of evidence. Defendant also seeks to establish that Friday’s testimony fails to meet the test for an exception to the best evidence rule (DB: 11-13), wherein “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence.” Schozer, 84 N.Y.2d at 644 (citations omitted); see People v. Joseph, 86 N.Y.2d 565 (1995) (applying exception). This is just another red herring, because as noted, there is no basis to apply the best evidence rule in the first place – the contents of the Mayor’s will not being in dispute – and so there can be no meaningful application of an exception to it. Indeed, the facts of Joseph demonstrate the complete lack of affinity between defendant’s claim and the interests served by the best evidence rule. In Joseph, a police officer had prepared a voucher for evidence seized from Joseph, and the voucher was destroyed and thus was not provided to Joseph in accordance with the rule of People v. Rosario, 9 N.Y.2d 286 (1961). The issue was whether the remaining paperwork, which was provided to Joseph, constituted the “duplicative equivalent” of the missing voucher so as to avoid a violation of the Rosario rule. As this Court recognized, to demonstrate the “precise correlation between the undisclosed and disclosed material” required of a duplicative equivalent, a “visual inspection of both documents is necessary.” Joseph, 86 N.Y.2d at 569. It being necessary to compare the documents, -39- the question arose whether the officer’s testimony of his recollection of the missing document would suffice “under principles allowing the use of ‘secondary evidence’ where the ‘best evidence,’ i.e., the original document, has been lost or destroyed.” Because “a law enforcement officer’s deliberate destruction of a witness’s statement” was not a sufficient explanation for the unavailability of the document, secondary evidence was simply not permissible. Id. at 570 (citing Schozer). Here, of course, there was no analogous “need for perfect exactitude in the presentation of the document’s contents” (DB: 11, quoting 2 McCormick on Evid. §239 at 11 [6th ed]). Unlike Joseph’s voucher whose precise contents had to be established, the People never sought to place the terms of the Mayor’s will at issue in the first place. Furthermore, in Joseph the document was missing and the party who sought to prove its contents was the party who had destroyed it. Here, the document was not missing at all – the contents of the Mayor’s will were made available for defense inspection even though they were not even being placed in issue by the People. Thus, none of the concerns of Joseph were present here: there was no need for knowledge of the document’s contents, yet the document’s contents were accessible to all. Notably, even when considering a situation where an exception to the best evidence rule is needed, judicial scrutiny of the explanation required from the proponent of the secondary evidence should be proportional to how “important the document [is] to the resolution of the ultimate issue in the case.” Id. at 645 (citing -40- Harmon v. Matthews, 27 N.Y.S.2d 656, 662-663 [Sup. Ct., Bronx County 1941] and People v Dolan, 186 N.Y. 4, 13 [1906]). In performing that scrutiny, the court should consider the “possible motivation for the nonproduction of the original” and whether the secondary evidence offers “a reliable and accurate portrayal of the original.” Schozer, 84 N.Y.2d at 644-645. Here, in offering Friday’s testimony, the People did not seek to prove the contents of the document creating the Mayor’s trust, because the document was not the least bit important to the resolution of the case. Thus, the trial court had no reason to scrutinize the People’s reason for not issuing a subpoena to secure the document in derogation of the Mayor’s hope to keep his affairs private. That hope for privacy was a proper motivation for the People to decline to compel production of the will, especially where the relevant portions of it were available for defense inspection. Had defendant believed that he was entitled to a more detailed understanding of the Mayor’s estate planning, he could have asked the court to issue a subpoena. In short, the trial evidence left no room for doubt that Mayor Bloomberg owned the money stolen from him by defendant. It was only when defendant sought to confuse the issue, by cross-examining a witness who had no knowledge of the Mayor’s financial affairs, that the People elected to call the lawyer who had created the trust to confirm the Mayor’s ownership of the money it contained. Those circumstances – all of defendant’s own making – did not warrant forcing the Mayor to disclose his private estate plan. Given the irrelevance to defendant’s case of the -41- Mayor’s private affairs, the availability of the relevant portions of the document for cross-examination purposes, and the lack of any real dispute about what was in the document, the court’s course of action amounted to nothing more than a sound exercise of discretion. C. Finally, any possible error in the trial court’s decision to allow Friday’s testimony would have to have been harmless. Where there is overwhelming evidence at trial of a defendant’s guilt, a non-constitutional trial error will be deemed harmless unless “there is a significant probability, rather than only a rational possibility, in the particular case that the jury would have acquitted the defendant had it not been for the error or errors which occurred.” People v. Crimmins, 36 N.Y.2d 230, 239-242 (1975). Here, the alleged error is the admission of Friday’s testimony that the Mayor owned the money in the Bloomberg Revocable Trust. There was virtually no possibility, let alone a “significant probability,” that omission of this testimony (or the introduction of the Mayor’s will in its place) would have led to an acquittal. In light of the testimony from the Mayor, Harris, Jaffin, Sheekey, Reid, and Rizzo that defendant fervently sought their approval of a transfer of $1.2 million of the Mayor’s money, that they ordered the transfer of money from the Bloomberg Revocable Trust to the Independence Party, and that $1.2 million was indeed transferred from the trust to the -42- Independence Party as a result, neither Friday’s testimony nor the document itself was remotely necessary to establish that Mayor Bloomberg owned that money. Defendant’s rampant dishonesty in his dealings with every witness in this case made sense only in the context of the money transferred from the trust account being the Mayor’s. Indeed, in a single-minded effort to make the transfer happen, defendant repeatedly lied to the Mayor’s top advisors about the extent of a ballot security operation he knew he would never conduct. He lied to Harris, Jaffin and Sheekey about what expenses he had already incurred and planned to incur, in more and more detail until he was able to get approval for the amount of money he knew he needed to buy his brother’s share of their father’s house. He hid from his friends that he was dating one of the Mayor’s financial advisors, Fiona Reid, and he hid from Reid that he was angling to buy a house with the Mayor’s money. All of these lies were directed at getting the Mayor to fund the purchase of his house with $1.2 million that the Mayor indeed agreed to provide, and ultimately did provide. And then defendant lied to the Independence Party that he was using the money for ballot security each time he arranged for transfers to the accounts under his own control, promptly using those ill-gotten gains to make first the down payment and then the final payments to close on his house. Even if Friday had not testified that the money in the Bloomberg Revocable Trust belonged to the Mayor, no jury – let alone a reasonable one – would have had any reason to doubt defendant’s guilt. -43- Defendant argues that the harmlessness of the court’s ruling cannot be determined because the Mayor’s will was not made part of the record (DB: 11). But defendant’s trial attorneys had access to the will for purposes of cross-examining Friday. Naturally, had there been anything helpful to defendant in the will, his attorneys would have made it known by spelling out the relevant terms orally on the record, or at the very least by impeaching Friday with the will. But instead, the defense used the cross-examination purposefully to elicit the very sort of testimony about the terms of the document that the People did not elicit, and that the defense now complains should not have been admitted. Their failure to come up with anything besides invoking the “best evidence rule” – even while staring that best evidence in the face – indicates beyond peradventure that the document itself had nothing to offer the defense. And of course, the defense could have subpoenaed the will after the People declined to do so. The decision not to do that is further indication that it contained nothing helpful to the defense. Finally, defendant’s trial attorneys explained that the reason they had hoped to introduce the trust document was to establish that the trust was a “separate legal entity” from Mayor Bloomberg (1032). The defense did exactly that during cross- examination of Friday (Friday: 1049-1053). Thus, that defense objective was obtained. The problem for defendant is that regardless of the personhood status of the trust, it still belonged to Mayor Bloomberg – so the money defendant stole from it was the Mayor’s. -44- * * * In sum, it was reasonable for the court to permit Friday’s testimony that Bloomberg owned the funds in the Bloomberg Revocable Trust, even without requiring admission of the will itself. If the court could be said to have erred in doing so, any error was harmless beyond all doubt, because the other evidence in the case overwhelmingly proved that Mayor Bloomberg owned the $1.2 million transferred at defendant’s behest. Accordingly, the jury’s verdict could not possibly have been affected by the presence or absence of Friday’s testimony, and there was certainly no “significant probability” that it would have been. -45- CONCLUSION The judgments of conviction should be affirmed. Respectfully submitted, CYRUS R. VANCE, JR. District Attorney New York County danyappeals@dany.nyc.gov by: _____________________ Vincent Rivellese HILARY HASSLER VINCENT RIVELLESE Assistant District Attorneys Of Counsel December 23, 2013