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A disbarred criminal defense attorney and his paralegal are fighting to toss out their 2016 convictions of bribing an agent from the New York City Criminal Justice Agency to steer clients their way, arguing that the employee was not a public official.

But at oral arguments for the appeals Thursday before a panel of the Appellate Division, First Department, the attorneys for former attorney Benjamin Yu and paralegal Jose Nuñez were met with justices who questioned how an agent from the CJA, a private nonprofit that serves the state court system by interviewing defendants to determine if they can be released on recognizance, is not providing a government function.

“They weren’t hired to help the defendants,” said Justice Sallie Manzanet-Daniels during an exchange with Jan Hoth of the Center for Appellate Litigation, who argued for the defendants. “They were hired to assist the courts.”

The CJA, formerly called the Pretrial Services Agency, was established in 1973, though the seeds for the entity were planted in the early 1960s when industrialist Louis Schweitzer and  magazine publisher Herb Sturz established the Vera Foundation to address income-based inequality in New York City’s bail system.

The agency conducts prescreening interviews of defendants while they are waiting for their arraignments to determine what kind of ties they have to the community and then makes recommendations to judges as to how likely the defendants are to come back to court if they aren’t held in jail.

According to the Manhattan District Attorney’s Office, from September 2013 to September 2014, a CJA employee who conducted interviews sent text messages containing defendants’ information to Yu and Nuñez and convinced defendants to retain Yu’s services with promises of shorter holding periods.

In turn, according to the DA, Nuñez paid the employee between $200 and $1,000 to develop profiles on arrestees and to refer them to Yu.

“This was corruption of the system,” said Assistant District Attorney Davis Cohn, who appeared at the oral argument for the Manhattan DA.

In 2015, Dwane Smith, another disbarred criminal defense attorney, pleaded guilty to third-degree bribery for his role in the scheme. He was sentenced to six months in jail followed by probation.

In 2016, following a jury trial, Yu and Nuñez were convicted of second-degree bribery, fourth-degree conspiracy and 13 counts of second-degree rewarding official misconduct.

In court papers, Patrick Brackley, Yu’s attorney, concedes that the kickback scheme was “unethical” but that it could not be considered bribery as it is defined by statute.  

Yu and Nuñez were given prison sentences of three to nine years and have been free on bond pending their appeals.   

At the oral argument before the First Department, Justice Ellen Gesmer said to Hoth that Yu and Nuñez’s actions amounted to a “corruption” of the system, saying the defendants steered to Yu may have had their arraignments expedited.

“It’s still a violation of the fundamental part of the criminal justice system that defendants not be pushed toward private counsel for improper purposes,” Gesmer said.  

Read more:

Two Sentenced to Prison in Client-Steering Scheme

Two Convicted of Payments to Steer Potential Clients

Lawyer Disbarred for Using Bribes to Gain Clients