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Even before Monday’s apology by New York Gov. Eliot Spitzer for engaging in conduct that he said violated his sense of “right and wrong,” the second-year governor faced a burgeoning fiscal emergency and an openly hostile state Senate majority that is itself fighting for its political life. Spitzer’s latest personal and political crisis, reportedly stemming from his being linked to the investigation of an alleged prostitution ring by federal prosecutors in the Southern District of New York, further weakened his already shaky ability to push the government reform agenda he promised the voters who swept him into office 14 months ago. Spitzer, 48, apologized during a brief statement Monday afternoon at his New York City office, “first, and most importantly, to my family. I apologize to the public, whom I promised better.” But Spitzer did not take questions about what he referred to as a “private matter” and did not indicate if he would step down. He promised to “dedicate some time to regain the trust of my family.” “I have disappointed and failed to live up to the standard that I expect of myself,” Spitzer said, his wife, Silda Wall Spitzer, at his side. The Spitzers have three teenage daughters. On Monday, the governor had not made any further announcements about his plans to stay in office. Disbelief greeted reports that Spitzer, elected in 2006 in a record-setting landslide after burnishing his image as the “Sheriff of Wall Street” for eight years as state attorney general, reportedly was the so-called “Client 9″ who had hired a prostitute supplied by the Emperors Club VIP during a Feb. 13 trip to Washington, D.C. Four figures connected to the ring were indicted last week. Spitzer has not been charged. Vincent Bonventre, a professor at Albany Law School and a state constitutional expert, said the shock of the allegations against Spitzer were rivaled in recent state history only by the arrest and subsequent resignation of former Chief Judge Sol Wachtler in 1992 for harassing his ex-girlfriend. “It’s a crisis for the state and it certainly doesn’t help the executive branch,” Bonventre said Monday. “It weakens the hand of the executive. He’s really putting the executive branch in a terrible position vis-�-vis the Legislature. It’s absolutely dreadful.” The last time a governor stepped down in New York was in 1973, when Malcolm Wilson succeeded Nelson Rockefeller, who resigned after 14 years as governor to give Wilson the chance to run as the incumbent. Wilson served out the final year of Rockefeller’s term but was defeated by Democrat Hugh L. Carey in the 1974 election. Spitzer’s lieutenant governor, Democrat David Paterson, is next in line for succession under the state constitution if Spitzer steps down or is removed from office for being convicted of a felony. Paterson, whose office had no immediate comment Monday, would serve out the balance of Spitzer’s four-year term, through 2010. Third in the line of succession is Senate Majority Leader Joseph Bruno, the Republican from rural Brunswick in Rensselaer County who emerged last year as Spitzer’s most bitter political rival in a policy debate that quickly turned personal. Bruno, as majority leader, would assume the duties of lieutenant governor if Spitzer resigns or is removed. Politically, that would aid Bruno and his Republicans who are hanging on to the Senate’s majority by a 32-30 margin. Should Republicans and Democrats climb into a 31-31 tie, Paterson would currently cast the deciding vote and Democrats would take control of the Senate for the first time since 1965. RESTRAINED REACTION Bruno, who acknowledges that he is under FBI investigation for business dealings with close associates, was restrained Monday as the hold on the governorship by his nemesis became shaky. “I feel very, very badly for the governor’s wife and his children,” Bruno told reporters in a brief break from a closed-door conference with his Republican members. “The important thing for the people of New York state is that people in office do the right thing because there are so many challenges out there. It’s important that we govern, move forward to getting a proper budget in place for the people of this state. That’s how decisions ought to be made by people in public office.” Assembly Speaker Sheldon Silver, D-Manhattan, was similarly guarded about Spitzer’s new difficulties. “The allegations against the governor are before the public,” Silver said in a statement Monday afternoon. “I have nothing to add at this time.” However, a political rival in the Assembly, James Tedisco, R-Schenectady, said that if Spitzer was involved in a prostitution ring, he should step down. “If it was indeed the case that he was indeed a client in this prostitution ring, for a governor that had a tremendous mandate and part of that mandate was to change the way ethics worked here at the state Capitol and in government, this is a true breach of that promise,” Tedisco told reporters. “He breached that ethics issue himself in this way. There’s no question in my mind, if indeed it is the truth, he has to resign.” Tedisco is the legislator who told reporters that Spitzer tried to intimidate him in early 2007 by profanely referring to himself as a “steamroller” who was out to crush his opponents at the Capitol. Spitzer retained Dietrich L. Snell of Proskauer Rose to represent him in investigations of whether the governor’s top aides hatched a scheme last year to discredit Bruno through the leaking of Bruno’s travel records to an Albany newspaper. Spitzer is being represented by Paul Weiss Rifkind Wharton & Garrison, where the team is being led by Michele Hirshman, who was the governor’s top deputy when he was attorney general. Hirshman, who joined Paul Weiss as a partner last year, confirmed the representation Monday but declined further comment. Prior to joining Spitzer’s office in 1999, Hirshman was chief of public corruption in the Southern District U.S. Attorney’s Office. CRIMINAL LIABILITY Two criminal defense lawyers said Monday that if reports of a sworn statement filed by an FBI agent were correct, Spitzer could face charges that he violated the federal Mann Act, which makes it a crime to transport someone across interstate lines for prostitution. FBI agent Kenneth Hosey reported in the affidavit that a wiretap captured Client 9 on telephone calls to employees of the prostitution ring discussing plans to travel from New York to Washington, where Spitzer had reserved a hotel room. If that account is true, Harold Price Fahringer, who has a niche practice defending purveyors of erotic materials and activities against both civil and criminal charges, said Spitzer could face charges under the Mann Act, 18 U.S.C. Section 2421, which carries a maximum penalty of 10 years in prison and a $250,000 fine. Mark Agnifilo, a senior associate with criminal defense attorney Benjamin Brafman’s office, concurred with that assessment. Agnifilo also said Spitzer could face a criminal charge under a Washington, D.C., law making it a crime to patronize a prostitute. The Washington law, Code Section 22-2701, carries a maximum penalty of 90 days in jail. As a part of legislation signed by Spitzer in June creating stiff new criminal penalties for those who force others to engage in sex or other labor, Spitzer approved an increase in the penalty under New York’s law against patronizing a prostitute in New York to one year in prison from 90 days (Penal Law Section 230.04). In 2007, 1,672 people in New York were arrested on charges of patronizing a prostitute and 149 were convicted, according to John Caher, a spokesman for the state Division of Criminal Justice Services. Spitzer’s Washington conduct is not subject to that law. FBI agent Hosey, in an affidavit, stated that Client 9 had told an employee of the alleged prostitution ring that he had a credit with the ring of about $400 to $500 for “transportation.” Hosey stated that Spitzer’s reference to “transportation” is “believed to be a reference to the cost of train fare for ‘Kristen’” from New York to Washington. “Kristen” is described elsewhere in the affidavit as a petite, pretty brunette, 5’5″ tall and weighing 105 pounds. Spitzer apparently was familiar with Kristen because when told she would be coming, the affidavit quoted him as saying, “Great, OK, wonderful.” The affidavit said Kristen spent about four hours with Client 9, who paid her $4,300 when she left � $2,600 for that night and the remainder for future encounters. According to Hosey’s affidavit, Southern District Judge Charles S. Haight approved on Jan. 8 a wiretap to intercept calls and text messages to a phone number belonging to the Emperors Club. LEGISLATIVE GRIDLOCK The Legislature and Spitzer fell into gridlock last year during an increasingly acerbic debate over campaign finance reform and other issues between the governor and Mr. Bruno. Among the casualties of that dispute between Bruno and Spitzer was legislation providing for the first pay raise for state judges since 1999. Under pressure from Spitzer, Senate Democrats pulled their support from a pay bill last April, ostensibly because they did not think Senate Republicans had gone far enough in making ethical reforms in government. Spitzer’s 2008-09 state budget proposal also contained a judicial pay raise. However, between the time that spending plan was proposed in January and this month, with projected budget gaps in that spending plan and future ones growing, the state’s worsening financial condition had called the chances of a pay raise getting through the Legislature into doubt. State legislators have also been seeking a pay hike since 1999 and majority Democrats in the state Assembly have balked at passing a judicial salary increase without voting themselves an increase, too. Chief Administrative Judge Ann Pfau has said in recent weeks she remained hopeful that, with Spitzer’s support, a judicial pay raise could emerge during negotiations this month over the state budget. Monday, Office of Court Administration spokesman David Bookstaver said it was “inappropriate and premature to comment” on how Spitzer’s latest woes would affect chances for a judicial pay raise or other aspects of the OCA’s legislative agenda. The relationship between Spitzer and Bruno became even more poisonous in July, when Attorney General Andrew M. Cuomo reported about the governor’s office’s attempts to discredit Bruno through travel records gathered by State Police. Spitzer’s approval ratings began to sag last year when he became embroiled in political fights with Bruno, and became worse when the revelations about the effort to discredit Bruno came out. His favorable to unfavorable rating in a Siena College poll in January was 44 percent to 41 percent � an improvement from the 36 percent favorable to 50 percent unfavorable rating he received in December. Spitzer had also worked behind the scenes in favor of the Democratic candidate in a state Senate special election last month in northern New York who wrested a 30th seat for the Democrats from the Republicans. This article originally appeared in theNew York Law Journal, a publication of ALM. �

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