The interesting criminal conviction, and automatic disbarment, of New York City criminal defense attorney #BenjaminYu. Part I. The selectively blind justice - blind literally, as to the law and evidence.

Here is the decision of the Appellate Division 1st Judicial Department, of October 26, 2017, disbarring New York City criminal defense attorney Benjamin Yu:


"On May 31, 2016, in Supreme Court, New York County, respondent was convicted, after a jury trial, of 

• conspiracy in the fourth degree (Penal Law § 105.10[1]), a class E felony; 
• two counts of bribery in the second degree (Penal Law § 200.03), a class C felony; and 
• 13 counts of rewarding official misconduct in the second degree (Penal Law § 200.20), a class E felony. 

Respondent's conviction stemmed from his paying an employee of the New York City Criminal Justice Agency to persuade criminal defendants to retain respondent as their attorney. On August 17, 2016, respondent was sentenced to 3 to 9 years in prison; he remains free on bail pending appeal."

Judges who authorized the disbarment are:

Karla Moskowitz, Justice Presiding,
Paul G. Feinman
Judith J. Gische
Barbara R. Kapnick

Ellen Gesmer, Justices. 

Since then, Paul Feinman, "the first openly gay judge" in the 1st Department (the 3rd Department outdid the 1st - there, the Governor made "the first openly gay female judge" the presiding justice of the court in 2018), since then was promoted by Governor Cuomo to the New York State Court of Appeals - where he will now be reviewing an appeal from his masterpiece of stupidity and dishonesty.

I will review backgrounds of all participants who brought about this disgraceful wrongful conviction and wrongful disbarment of a much-needed criminal defense attorney in New York City in a separate blog article.

On December 20, 2018, more than a year after that same court decided to disbar attorney Benjamin Yu, BEFORE hearing his appeal, the same court - predictably, not to admit its own illegal conduct in disbarring an attorney framed into a wrongful conviction by his opponent in litigation, prosecutor Cyrus R. Vance, Jr., AFFIRMED his conviction, in this decision:

"

People v Yu

Annotate this Case

People v Yu 2018 NY Slip Op 08754 Decided on December 20, 2018 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 20, 2018
Richter, J.P., Manzanet-Daniels, Tom, Gesmer, Kern, JJ.
3874/14 -5424 7915 7516

[*1] The People of the State of New York, Respondent,

v

Benjamin Yu, Defendant-Appellant.



The People of the State of New York, Respondent,

v

Jose Nunez, Defendant-Appellant.

Patrick J. Brackley, New York, for Benjamin Yu, appellant.

Robert S. Dean, Center for Appellate Litigation, New York (Jan Hoth of counsel), for Jose Nunez, appellant.

Cyrus R. Vance, Jr., District Attorney, New York (David M. Cohn of counsel), for respondent.

Judgments, Supreme Court, New York County (James M. Burke, J.), rendered August 17, 2016, convicting each defendant of bribery in the second degree (2 counts), conspiracy in the fourth degree and rewarding official misconduct in the second degree (13 counts), and sentencing each defendant to an aggregate term of three to nine years, unanimously affirmed. The matter is remitted to Supreme Court for further proceedings as to both defendants pursuant to CPL 460.50(5).

Defendants Yu and Nunez, an attorney and paralegal respectively, were convicted of bribing an employee of the Criminal Justice Agency (CJA) to refer arrestees as potential clients. The principal issues on appeal arise out of the fact that CJA employees, who interview arrestees regarding their suitability for pretrial release, are not City employees, but employees of a City-funded nonprofit agency. Thus, under the bribery statutes, the CJA employee was not a "public servant" under Penal Law § 10.00(15)(a), which is limited to public employees, and the parties disagree about whether he qualified as a public servant under § 10.00(15)(b), as a "person exercising the functions of any such public officer or employee."

There was no impermissible variance between the trial evidence and the indictment. At trial, the People proceeded on the theory that the CJA employee was a public servant under the "exercising" theory set forth in § 10.00(15)(b), and the court charged the jury accordingly. Both the "public employee" and "exercising" theories had been submitted to the grand jury, and the indictment was compatible with both theories, except for some language in the narrative portion of the conspiracy count relating to the employee's status, which the court modified. To the extent the court amended the indictment, the amendment satisfied the requirements of CPL 200.70. Defendants were not prejudiced, because they received notice long before trial that the People's theory would be that the employee was a public servant under the "exercising" theory. To the extent that defendants are arguing that the evidence before the grand jury was insufficient to support that theory, that claim is unreviewable (CPL 210.30[6]).

The verdict was based on legally sufficient evidence and was not against the weight of the [*2]evidence (see People v Danielson, 9 NY3d 342, 348-349 [2007]). Testimonial and documentary evidence established that the CJA employee was a public servant under § 10.00(15)(b) because he exercised the functions of a public employee in interviewing arrestees and making recommendations to arraignment judges whether to release the arrestees on their own recognizance. Evidence was presented that CJA is wholly funded by the City, and receipt of such public funds is a relevant factor in the determination (see People v Kruger, 87 AD2d 473, 475-76 [2d Dept 1982]). CJA performs a function previously performed by the Probation Department in New York City, and still performed by the Probation Department in counties outside of the City. In addition, CJA recommendations facilitate an important government interest, namely, regulating pretrial incarceration (Matter of Bernard T., 250 AD2d 532 [1st Dept 1998], lv denied 92 NY2d 808 [1998]; Kruger, 87 AD2d at 475).

The evidence also sufficiently established that defendants sought to influence the CJA employee with respect to his "vote, opinion, judgment, action, decision, or exercise of discretion as a public servant," as required to convict them of bribery in the second degree (Penal Law § 200.03). Although the bribe was not offered to influence bail recommendations, which was the employee's primary responsibility, it was offered to influence the employee to interview and screen arrestees so as to identify those who could afford private counsel, to make false and misleading statements to the arrestees, and to make improper referrals. The employee's actions violated CJA's prohibition against private attorney referrals, and violated its general policy that its employees maintain neutrality. He also took advantage of his position and access to information within the CJA. Thus, at the very least, the employee's "action" as a public servant was influenced (Penal Law § 200.03).

Although the court's jury charge defining the term public servant contained some overly broad language, the court also read the statutory definition, and the charge, when viewed as a whole, conveyed the proper definition (see generally People v Fields, 87 NY2d 821 [1995]). In any event, any error was harmless (see People v Crimmins, 36 NY2d 230 [1975).

Defendant Yu's remaining contentions are unpreserved and we decline to review them in interest of justice. As an alternative holding, we reject those arguments on the merits. Yu's ineffective assistance of counsel claims relating to these unpreserved issues are generally unreviewable because Yu has not made a CPL 440.10 motion. In the alternative, to the extent the existing record permits review, we find that Yu received effective assistance under the state and federal standards

(see People v Benevento, 91 NY2d 708, 713-714 [1998]; Strickland v Washington, 466 US 668 [1984]).

We have considered and rejected defendant Nunez's excessive

sentence claim.

M-5424 - People v Benjamin Yu

Motion to adopt defendant Nunez's arguments granted.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 20, 2018

CLERK"

Compare the disbarment panel in October of 2017 and the appeal panel in the December of 2018:

Disbarment (earlier) panel:

Karla Moskowitz, Justice Presiding,
Paul G. Feinman
Judith J. Gische
Barbara R. Kapnick

Ellen Gesmer, Justices. 

Appellate (later) panel:

Richter, J.P., 

Manzanet-Daniels, 

Tom, 

Gesmer, 

Kern, JJ.

Ellen Gesmer was present on both panels and rubber-stamped, in December of 2018, her disbarment decision of 2017 - otherwise she would have had to agree that she not just erred, but incompetently and dishonestly "erred".

Remember - a "harmless error" of giving the jury the "overly broad definition" of what is a "public servant"?

Ok, now let's go to the definitions of the criminal statutes which were used to convict criminal defense attorney Benjamin Yu.

Penal Law 105.10 (1):

"S 105.10 Conspiracy in the fourth degree.
  A person is guilty of conspiracy in the fourth degree when, with
intent that conduct constituting:
  1. a class B or class C felony be performed, he or she agrees with one
or more persons to engage in or cause the performance of such conduct".

So, this is not an independent criminal charge, it is an add-on requiring that a valid charge for a B or C felony be also made against the defendant - and brought to conviction.

And, here is the C felony that was used to convict criminal defense attorney Benjamin Yu, of New York City, practicing for 12 years by the time of conviction, of the E-felony, "Conspiracy in the fourth degree" under Penal Law 105.10(1) - Penal Law 200.03, a C felony.

First of all, the whole Article 200 of the New York Penal Code is called "Bribery involving public servants and related offenses".

Penal Law 200.03 states:

S 200.03 Bribery in the second degree.
A person is guilty of bribery in the second degree when he confers, or
offers  or  agrees  to  confer,  any  benefit  valued  in excess of five
thousand  dollars  upon  a  public  servant   upon   an   agreement   or
understanding  that  such  public  servant's  vote,  opinion,  judgment,
action, decision or exercise of discretion  as  a  public  servant  will
thereby be influenced.
  Bribery in the second degree is a class C felony."

Do you think, the words "public servant" were just a mere entertainment of the public when they were mentioned 4 TIMES, 1 in the name of the article containing definitions of crimes, and 3 TIMES in the definition of the crime charged against criminal defense attorney Benjamin Yu, and for which he was convicted:

• after a grand jury indictment,
• after denial to him of pre-trial motions,
• after a jury trial, for God's sake, and
• he was disbarred by an Appellate court based on that conviction.

It must have some meaning, right?

As a key element of the crime, actually.

And, let's finish the review of what the criminal defense attorney Benjamin Yu was actually convicted (and then disbarred) for in our most progressive state of New York, the #2 winner in the country of the biggest number of wrongful convictions?

He was convicted - by a jury, no less, for 13 counts (!) of "rewarding official misconduct", an E felony under the same Article 200 of the New York Penal Law, only another statute, Penal Law 200.20, which states:

S 200.20 Rewarding official misconduct in the second degree.
  A person is guilty of rewarding official misconduct in the second
degree when he knowingly confers, or offers or agrees to confer, any
benefit upon a public servant for having violated his duty as a public
servant.
  Rewarding official misconduct in the second degree is a class E felony.

So, who was that mysterious "public servant" whom criminal defense attorney Benjamin Yu conspired to bribe?

The sad part is that here, the fabrication of the wrongful conviction - 

• by the prosecution (Benjamin Yu's opponent in litigation with a conflict of interest) AND 
• by the trial judge that gave the jury instructions on the law, AND
• by the panel of 5 appellate judges that disbarred Benjamin Yu instead of tossing both his conviction and his disciplinary charges as screamingly illegal

was not even concealed by any means, it is out in the open.

Let's, before we go into the technicality of what was so wrong with this conviction (and disbarment), review first one more law of the glorious New York State - the law governing what kind of names can be given to CORPORATIONS.

New York Business Law Section 301(a)(8)

301. Corporate name; general. (a)  Except  as  otherwise  provided  in  this  chapter, the name of a
  domestic or foreign corporation: (8)  Shall  not  contain  any words or phrases, or any abbreviation or
  derivation thereof in a context which will tend to  mislead  the  public
  into  believing  that the corporation is an agency or instrumentality of
  the United States or the state of New York or a subdivision  thereof  or
  is a public corporation.

Good to know, right?

Now let's go back to what criminal defense attorney Benjamin Yu was charged and convicted of - and automatically disbarred after that conviction.

Here is, once again, the order of disbarment of the criminal defense attorney Benjamin Yu, of October 26, 2017:

"Respondent's conviction stemmed from his paying an employee of the New York City Criminal Justice Agency to persuade criminal defendants to retain respondent as their attorney."

And here is WHAT that "New York City Criminal Justice Agency" is - a CORPORATION, with an IRS "non-profit" "ruling year" 1977.

But, the fact that the CORPORATION is called a New York City Criminal Justice Agency does not just "tend" to mislead the public that it is an agency of New York State "or of its subdivision" in some kind of a "context", it is bluntly and openly does so by

• not having the extension required by law in its name to denote that it is a CORPORATION:

New York Business Corporation Law 301(a)(1):

(1) Shall contain the word "corporation", "incorporated" or "limited",
  or an abbreviation of one of such words; or, in the case  of  a  foreign
  corporation, it shall, for use in this state, add at the end of its name
  one of such words or an abbreviation thereof.


AND

• by making no attempt to come to the court (which gives its funds, more than $18 million dollars per year, since 1977, according to its corporate tax returns published on guidestar.org) in the criminal proceedings against criminal defense attorney Benjamin Yu and saying - but, Your Honor, this is a farce, we are a CORPORATION, none of our employees are PUBLIC SERVANTS, or have "duties of PUBLIC SERVANTS", and none of misconduct of our employees can be deemed as "OFFICIAL MISCONDUCT".

Did you see even a MENTION, in either of these appellate court (and licensing court, one and the same) decisions that attorney Benjamin Yu paid an employee of a CORPORATION that is, for some God-forsaken reason is allowed by criminal courts in New York City, SINCE 1977!!! - for 42 freaking years) access to "arrestees", to "talk" to them in order to "make bail recommendations", at the time when those same "arrestees" have been 

• arrested,
• charged with a crime, and
• by New York State Constitution their right to counsel INDELIBLY (no waivers of the right to counsel unless in the presence of counsel and with his written approval) attached at that time, and
• by the federal Constitution, their right to counsel attached at the time of arraignment?

Not to mention that their right to remain silent is attached by virtue of being in the state custody (arrestees, remember)?

Do you see even an ATTEMPT of the court to explain to the public why such an "AGENCY" even exists and is given access to those same "arrestees"?

Do you see even an ATTEMPT of the court to explain to the public why the court stubbornly keeps calling this CORPORATION an Agency, and why it affirms a conviction of two people, one an attorney, the other - an employee of that CORPORATION, for violation of 

CORPORATE RULES and 

CORPORATE POLICIES

as if they were "public policies" and as if employees of that corporation were "public servants"?

On the other hand, even if the court claims that they WERE employees of the court, why doesn't the court even MENTION that the court, instead of doing its direct duty in assigning counsel to those arrestees, the court's duty under the state and federal Constitutions (the 6th Amendment, Gideon v Wainright), the counsel that will 

• decide its own strategy, together with his client and while observing privilege of attorney-client communications,
• whether to seek bail at all, and

• if a decision to seek bail is made by the ATTORNEY AND HIS CLIENT - what kind of information to give the court in such bail proceedings, bearing in mind that the defendant "has a right to remain silent, anything you say can be used against you in the court of law", remember -

gives millions of dollars to some kind of a nonprofit corporation to talk to the "arrestees" (criminal defendants) INSTEAD of an attorney - while the court IS NOT ALLOWED to communicate with unrepresented criminal defendants if they want an attorney?

The court has only the duty to 

• ask whether a defendant can afford an attorney - that's what Benjamin Yu did, instead of the court, asking the corporation's employee to "screen" defendants to verify who can and who cannot afford an attorney, 
• WAIT until those who can afford an attorney HIRE such an attorney and be arraigned WITH the attorney, or
• ASSIGN an attorney to those who cannot afford an attorney -

but NO RIGHT whatsoever to talk to the arrestee in the interim, through its supposed "employees", to make "bail recommendations" - to itself?

Do you think, the trial judge James M. Burke, by "coincidence", a graduate of the same prestigious law school as the prosecutor, of the Georgetown Law School, who has been licensed to practice law for nearly 30 years, did not know all of that?

The prosecutor, DA Cyrus R. Vance, Jr., a graduate of the prestigious Georgetown Law School, practicing criminal law for over 30 years, did not know that?

The prosecutor who was opposing Benjamin Yu's appeal on DA Vance, Jr.'s behalf, David M. Cohn, an attorney with 20 years of experience, did not know that?

The disbarring panel of appellate judges did not know that?

Think again.

As of now, a criminal defense attorney has been disbarred, despite of the existing and ever-widening justice gap when the majority of Americans not only cannot afford an attorney, but cannot even find a qualified lawyer who would fearlessly and competently represent them in court (think that Harvey Weinstein, with all his money, had to bring a criminal defense team from out of state, because his in-state attorneys withdrew from representation, likely under "public pressure", think about the vicious attacks on Rudy Giuliani for the gall of representing a client hated by large numbers of the public).

And was disbarred, on false pretenses, for supposedly bribing and conspiring to bribe a "public servant" - when all participants, the defense, the prosecution and all courts involved, know very well that the employee in question was an employee of a corporation that violates New York Business Corporation Law Section 301, its TWO provisions

(a)  Except  as  otherwise  provided  in  this  chapter, the name of a
  domestic or foreign corporation:

(1) Shall contain the word "corporation", "incorporated" or "limited",
  or an abbreviation of one of such words; or, in the case  of  a  foreign
  corporation, it shall, for use in this state, add at the end of its name
  one of such words or an abbreviation thereof. (8)  Shall  not  contain  any words or phrases, or any abbreviation or
  derivation thereof in a context which will tend to  mislead  the  public
  into  believing  that the corporation is an agency or instrumentality of
  the United States or the state of New York or a subdivision  thereof  or
  is a public corporation.

to obscure its corporate nature and do specifically, what New York Business Law 301 prohibits it from doing:

"to  mislead  the  public
  into  believing  that the corporation is an agency or instrumentality of
  the United States or the state of New York or a subdivision  thereof  or
  is a public corporation." Note that a non-profit and a "public corporation" are two different things. A non-profit is not a corporation that does not GET profits by its business activities, it is the one that does not DISTRIBUTE profits amongst its members. Consider also that there is no minimums set by New York, or federal, law for non-profits to use donated money on their declared mission. So, out of $18 million that this particular nonprofit, the New York City Criminal Justice Agency, Inc., receives from the New York State court budget "and private donations", right, this corporation may use $1 on the actual "declared mission", the other $18 million minus $1 can just be used on lavish corporate quarters, lavish salaries to staff and lavish perks for staff. The "agency"'s corporate policy also mentions contracts with relatives and friends of officers and employees of the "agency" - and the way to "resolve" such conflicts of interests - not by forbidding such contracts altogether, but this way:

"In the event CJA was to ever consider entering into a contract or a transaction with any of these individuals or their spouses, ancestors, children, their children's spouses, siblings (of the whole or half blood) and their spouses, or grandchildren and their spouses, then the contractor transaction would be subject to the scrutiny of the agency's conflict of interest policy and procedure. The Agency's conflict of interest policy is designed to avoid even the appearance of impropriety and establishes a procedure to address them pursuant to the policy. The interested Director, Board member or officer must disclose any potential conflict of interest to the full board (or to the executive director who shall disclose it to the full board) who shall evaluate the nature of the transaction, if the terms are in CJA's best interest, whether they are competitive and reasonable, whether the interested person has influenced the specific terms, the significance of the proposed transaction to the CJA, whether the proposed transaction has a material impact on the interested persons, company or business, and whether the proposed transaction would jeopardize the board, officers, members impartiality. If it is determined that a conflict of interest does exist, the board shall take appropriate corrective action, and, if warranted, disciplinary action. The interested person shall not be present during the final discussion and vote of the board if the board believes the interested person failed to disclose even a potential conflict". So, once again, it is not a direct prohibition of contracts with relatives and friends of members of the board, officers and employees of this corporation, the corporation has a policy to review whether a contract with an "interested" person will benefit the corporation - and then may allow it. I wonder, how many friends and relatives of judges and of the DA Cyrus toil in this so-called "agency". Note that at, as per requirement of federal Form 990, Part VI, Section C, line 19, (filed in 2014) this "agency" did disclose that it is in reality called: "The New York City Criminal Justice Agency, INC."

Not to mention that the declared mission, "serve the criminal justice agencies and enable the pre-trial process", is extremely shady -

as explained above, in view of its role of, de facto, in being informants for the court and the prosecution in violation of criminal defendants state and federal constitutional right to an attorney and to remain silent, especially when in state custody.

As of now, Benjamin Yu remains convicted of three felonies (18 counts all in all) of crimes for which the court did not have jurisdiction - likely because he has upset the apple cart of DA Cyrus R. Vance, Jr. in using the court's pet nonprofit as snitches and get information from defendants while the court, obviously by agreement with that same Cyrus R. Vance, Jr., delays doing its duty and assigning counsel to criminal defendants - and doing it for 42 years so far.

He has upset that apple cart by yanking at least those who can pay an attorney out of this illegal "line" created by the court, of criminal defendants sitting in jail and made to wait by the court when the employees of the court's pet non-profit will come and make them talk, in return for a promise of a recommendation to have them released out of jail - which is, in itself, a scheme of an organized crime.

The gall!  An attorney trying to figure out who, out of those illegally kept by courts in jail without counsel, can afford counsel and actually representing them!

That is the real reason for courts and the prosecution coming against a criminal defense attorney as a ton of bricks and destroying his life, reputation and career.

The legal profession, including the defense bar, is mum.

No demonstrations, no petitions for their colleague framed into 

an obviously illegal conviction and disbarment.

On the opposite, New York Law Journal matter of factly reports

about a proposed "reciprocal" disbarment of Benjamin Yu 

in the no-less-glorious state of California.

The California's highest court has already put Benjamin Yu on "involuntary status" pending his disbarment proceedings.

You know why the defense bar does not display solidarity with an OBVIOUSLY wrongfully convicted colleague?

The trial prosecutor expressed it quite frankly, talking to the press around sentencing of Benjamin Yu:

"Assistant District Attorney Samuel Levy said the defendants don't seem to care that they cheated their colleagues and cheated to get ahead."

The local defense bar, in collusion with the court and prosecutor, who had their own reasons for a grudge against Benjamin Yu, as described above, simply got rid of a competitor - as "greedy", "cheating colleagues", and "cheating to get ahead".

The fates and constitutional of criminal defendants, sitting without counsel, according to court's "policy" of 42 years and waiting until the court and prosecutor's snitch urges them to talk in exchange of a promise for release from jail on bail - do not concern that same defense bar, courts, or prosecution, one bit.

As to the backgrounds of those who brought this farce of "criminal justice" about, and the impact of Benjamin Yu's conviction on the New York State and federal criminal and constitutional law - 

stay tuned to read the next articles in this series.