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Indicted Brooklyn Justice Gerald P. Garson must go to trial for bribery, the top charge against him, but the prosecution’s case was substantially narrowed in an opinion issued yesterday by Supreme Court Justice Steven W. Fisher.

Justice Fisher dismissed six felony counts against the judge because they were premised upon violations of ethical rules promulgated by the court system rather than criminal laws enacted by the state Legislature. The ruling was Justice Fisher’s last act in the case before his appointment to the Appellate Division, Second Department, takes effect Monday.

The dismissal of six counts of receiving rewards for official misconduct was based on issues that “appear to be of first impression,” the judge said, and noted that the prosecution had a right to take an immediate appeal if it disagreed.

Taking up where the judge left off, Brooklyn District Attorney Charles J. Hynes announced yesterday that the ruling in People v. Garson, 3515/03, will be appealed, saying in a statement that it is “essential to clarify when a judge may be criminally prosecuted for having violated his duty as a public servant.”

Justice Garson’s lawyer, Ronald P. Fischetti, said he was pleased with the ruling and confidently predicted his client would be acquitted. The narrowed case leaves the prosecution “with a box of cigars the prosecution bought [for the cooperating witness, lawyer Paul Siminovsky] so he would give them to the judge” and “meals that Siminovsky bought for his mentor,” Justice Garson, said Mr. Fischetti.

Some lawyers predicted the appeal could delay the start of the trial for up to a year. Such a delay would make it almost certain that the trial against Justice Garson’s four co-defendants would proceed first. The prosecution has stated its preference for that sequence, but some defendants have opposed it.

Justice Fischer said he would let his successor decide order-of-trial and discovery issues. Chief Administrative Judge Jonathan Lippman is expected to assign a new judge to the case before the next court date on June 1.

Justice Garson, who has been suspended without pay, faces a sentence of 2 1/3 to 7 years in prison if convicted on the bribery charge. He is accused of appointing Mr. Siminovsky as a law guardian and giving the lawyer ex parte advice on handling issues in cases before the judge in exchange for meals, drinks and, in one instance, an expensive box of cigars.

The six dismissed counts for receiving rewards for official misconduct would have carried maximum sentences of 1 1/3 to 4 years. Justice Fisher also dismissed two of three misdemeanor-level counts for official misconduct as unnecessarily dividing the core alleged illegal conduct and left standing one misdemeanor count of receiving an unlawful gratuity.

Tapes Allowed

Justice Fisher also rejected defense requests that 1,009 audio tapes and 64 video tapes be suppressed.

Despite that ruling, Mr. Fischetti said that the most controversial of the video tapes recorded during the six-month investigation of Justice Garson and the co-defendants “will never be seen by a jury” because it relates to the five counts dismissed in yesterday’s ruling.

That tape, which was leaked to Fox 5 News and broadcast on several occasions, captured Mr. Siminovsky handing Justice Garson $1,000 in cash as a referral fee on March 10, 2003.

But Noel Downey, the first deputy chief of the Brooklyn office’s rackets bureau, disputed Mr. Fischetti’s analysis. The tape showing the acceptance of a referral fee can be used as evidence because it shows a prior bad act that exemplifies the “unusually cozy relationship” between Justice Garson and Mr. Siminovsky that lies at the heart of the bribery count, Mr. Downey said.

A video tape of Mr. Siminovsky handing Justice Garson a box of cigars, however, will almost certainly be seen by the jury.

In rejecting the defendants’ motions to suppress the electronic surveillance, Justice Fisher for the first time assessed some of the prosecution’s evidence in deciding there was probable cause for the eavesdropping warrants issued in the case.

Among the evidence supporting the placement of a video camera in Justice Garson’s robing room at 210 Joralemon Street, was a comment recorded in a phone conversation between Mr. Siminovsky and Nissim Elmann, one of the four co-defendants. Nearly three months before Mr. Siminovsky began cooperating with the prosecution, Justice Fisher wrote, he was recorded as saying “he had just spent two hours getting the defendant drunk and that ‘[h]e’ll do what we want.’”

In another instance, Justice Fisher reported that Mr. Siminovsky was recorded as telling an attorney, “It’s a Garson case and I’ll get the benefit.”

Mr. Fischetti said Mr. Siminovsky’s statements are “completely untrue.” They are demonstrably untrue, he added, because the prosecution “has not charged Justice Garson with accepting bribes to fix cases.”

High Court’s 1979 Ruling

In dismissing the five counts of receiving rewards for official misconduct, Justice Fisher pointed out that the Court of Appeal’s 1979 ruling in People v. LaCarrubba, 46 NY2d 658, posed a substantial hurdle for the prosecution. In LaCarrubba, the Court dismissed a criminal case against a judge who had dismissed a traffic information for a close personal friend because the charge was based on a violation of the Code of Judicial Conduct, not a criminal law.

Similarly, Justice Fisher noted, the six receiving rewards counts were based on code violations. Five of those counts related to instances in which Justice Garson was accused of accepting cash referral fees from Mr. Siminovsky.

To make out a claim of rewards for official misconduct, Justice Fisher wrote, the prosecution must demonstrate that a public official violated a public duty. The prosecution said that by referring cases to Mr. Siminovsky, Justice Garson violated his duty not to lend the prestige of his office to advance private interests.

Ex Parte Contacts

The sixth count related to giving Mr. Siminovsky ex parte advice in violation of the prohibition against ex parte contacts involving pending matters. Both duties are contained in the state’s Code of Judicial Conduct, not the Penal Law.

The prosecution argued that LaCarrubba is not applicable because since 1979, the Code of Judicial Conduct has been incorporated into the Rules of the Chief Administrator of the Courts subject to a constitutional command that judges’ conduct shall be subject to rules “promulgated by the chief administrator of the courts.”

Justice Fisher rejected the argument, noting that many of the code obligations are “stated in broad and general terms.” Moreover, he pointed out, the preamble to the judicial conduct portion of the rules explicitly state that they are not “intended as a basis for . . . criminal prosecution.”

Under the circumstances, Justice Fisher concluded it would be “untenable” to hold that rules such as those contained in Chief Administrator’s Rules “can define an element of a crime.”

Assistant District Attorney Seth Lieberman, who is the member of the trial team assigned from the office’s appeals bureau, disagreed with Justice Fisher’s analysis, saying that “the Constitution sets forth an even more fundamental duty than one created by a statute.”

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