Photo: igorstevanovic/Shutterstock.com

Making a false statement to a state prosecutor in New York isn’t a crime under the state’s current penal code, but that could change in some cases if Democrats secure approval of a bill recently introduced in the state Legislature.

A bill by Sen. Todd Kaminsky, D-Nassau, would make lying to a state prosecutor or investigator in cases of public corruption or white-collar crime a class E felony, punishable by up to four years in prison if convicted.

That’s already a crime in the case of federal prosecutors and investigators, who have used the federal law in some of the most high-profile white-collar and public corruption cases of the last decade.

“Huge names we know, like Roger Stone, Martha Stewart, [Former Nassau County Executive] Ed Mangano, so on and so forth, are cases that relied on the federal [Title 18, U.S.C, Section 1001] and I think we want to give our prosecutors the tools to make those cases,” Kaminsky said. “It’s very hard to name even two big public corruption cases that a district attorney’s office has made in recent history because they just don’t have the tools to do so.”

Stewart was convicted on the charge more than a decade ago and spent time in federal prison. Both Stone and Mangano have been indicted on the charge, but their cases are ongoing. Mangano is scheduled to begin his second trial next week after a mistrial last year. Stone’s trial has yet to be scheduled.

Most public corruption cases in New York over the last decade have been brought by federal prosecutors, namely from the U.S. Attorney’s Office for the Southern District. Former U.S. Attorney Preet Bharara shook the power structure of state government in Albany when his office indicted former Assembly Speaker Sheldon Silver and former Senate Majority Leader Dean Skelos just months apart in 2015.

Neither of those cases were brought based on charges of making false statements to federal prosecutors, but at least one other case was: the trial of former Deputy Senate Majority Leader Thomas Libous.

Libous, a Republican from Binghamton, had been accused of lying to the FBI about helping his son secure a job at a politically connected law firm formerly known as Santangelo Randazzo & Mangone in Westchester County. Libous was convicted by a federal jury, but that decision was vacated after his death in 2016.

Kaminsky’s legislation would have given state prosecutors more power while probing such a case, though the bill similarly targets investigations into white-collar crime. It could be used by state prosecutors, for example, while investigating or prosecuting cases of grand larceny, falsifying business records and other white-collar offenses.

“I think this gives them a common sense tool,” Kaminsky said. “There’s very little justification for someone to say they should be able to give a false answer. You certainly have the right not to answer, but that’s not what this is punishing.”

Albany County District Attorney David Soares, a Democrat who serves as the current president of the District Attorneys Association of the State of New York, said Kaminsky’s bill would be a welcome change for the state’s prosecutors.

“We would favor that,” Soares said. “We would favor a system in New York that would mirror the federal practice in that regard, especially in the white collar world where it just seems to be an entirely different reality than the realities of other people.”

Defense attorneys representing individuals accused of white-collar crime would have a new stumbling block to advise their clients on if the bill becomes law. Andrew Kossover, a defense attorney from New Paltz who serves as legislative chair of the New York State Association of Criminal Defense Lawyers, argued the charge could be viewed as “a bit harsh” if used generously.

“It could lead to an unjust arrest if a charge could be filed based upon one single witness willing to contradict the subject,” Kossover said. “In an hours-long interview, could there be a charge filed under this proposed law if only a single answer to a single question turns out to be untruthful? Seems a bit harsh.”

Kaminsky said prosecutors would not be able to use the charge against someone over smaller, unimportant false statements. The individual would have to mislead prosecutors or investigators about something tangible that could have furthered their case, he said.

“This bill is drawn very narrowly,” Kaminsky said. “They have to be material. Like, you can’t say you’re 45 years old when you’re really 44 and that’s a crime. It has to matter.”

There also can’t be post hoc rationalization for the charge, Kaminsky said. In other words, prosecutors can’t interview someone and say later they’re going to turn that investigation into a white-collar offense. That has to be decided before the interview begins.

“You would have to document that that’s something you were doing beforehand before you undertook the interview,” Kaminsky said. “We’re trying to make sure there isn’t bootstrapping, there isn’t obsessive prosecutorial overreach.”

He said the legislation could be seen as another plank of criminal justice reform in New York. Lawmakers are currently considering a set of bills that would reform the state’s laws on cash bail, criminal discovery and pretrial detention. While Democrats work to make the system fairer for low-income defendants, Kaminsky said his bill would give prosecutors a new tool to do the same while investigating financial crimes.

“We’re going to be reforming our criminal justice system to make it more fair in the everyday case and to make sure there’s fairness there,” Kaminsky said. “But I also think we have to remember in capturing that fairness to make sure that elected officials and financial criminals aren’t acting with impunity.”

Kaminsky said he limited the bill to white-collar and public corruption investigations because criminal charges in other cases, such as a homicide, are often supported by physical evidence. A white-collar case, meanwhile, may rely more on the testimony of witnesses throughout an investigation.

“I think in a lot of offenses, especially violent ones, prosecutors have other tools,” Kaminsky said. “They have forensic evidence. They may have surveillance video. They may have other things that can help point them to a case.”

The bill, if passed, would take effect about three months after it’s signed into law. It has yet to gain a sponsor in the state Assembly, but Kaminsky has the support of six other Democrats who have signed on to cosponsor it in the Senate.

READ MORE:

Bail Reform Remains Sticking Point in NY Criminal Justice Reform Debate

NY Criminal Justice Reform Bills in Flux, Assembly Speaker Says

Criminal Justice Reforms Would Come With Fiscal Hit, DAs Group Says