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Manhattan District Attorney Cy Vance Jr. is blaming the coronavirus pandemic to justify dropping charges in a major construction fraud case tainted by allegations of prosecutorial misconduct, THE CITY has learned.
In what appears to be the first instance of COVID-19 knocking out a high-profile criminal prosecution in New York City, Vance revealed in court papers filed Monday that he won’t put a key bribery case back before a grand jury.
That’s because the actions of sitting grand juries have been suspended and no new panels have been convened since mid March when the coronavirus forced the shutdown of much of the state’s court system.
The case dropped by Vance involved one of several defendants in a wide-ranging construction bribery prosecution that’s now the subject of an internal review. At issue are accusations that the lead prosecutor in the case, Diana Florence, withheld evidence undermining her star witness.
One of those defendants was Henry Chlupsa, a former executive of an engineering firm charged with bribing the witness, a city bureaucrat, for inside information to win multi-million-dollar contracts.
Manhattan Supreme Court Justice Thomas Farber convicted Chlupsa in November following a three-week non-jury trial. Weeks later, Chlupsa’s attorney, Nelson Boxer, learned that the DA’s office had failed to turn over thousands of internal emails and interviews with the informant in which he claimed he never took bribes from anyone.
In January, Nelson asked Farber to vacate the conviction and dismiss the indictment.
Bid to ‘Conserve Resources’
In a court filing Monday, Assistant District Attorney Kenneth Moore Jr. agreed the conviction should be vacated, conceding the DA’s office hadn’t handed over the disputed material as it should have.
Moore insisted, though, the criminal charges against Chlupsa were still viable. But because of the COVID-19 restrictions on grand juries, the DA decided not to bring a new case against the now 77-year-old Chlupsa, Moore said.
“In an effort to conserve resources, especially in light of the coronavirus pandemic, and for the other reasons described below, the People will not be seeking to re-present new charges against the defendant to a new grand jury,” Moore wrote.
“In the wake of the coronavirus pandemic, no new grand juries will be convened for the foreseeable future,” he noted.
Under normal circumstances, grand juries — which in New York consist of 23 citizens meeting in a room to hear evidence — vote on whether to hand up an indictment.
An indictment is a formal allegation that must be resolved either by plea or trial. Law enforcement is required to bring a case to a grand jury within six days of arrest or release the defendant.
But with COVID-19 wreaking havoc on the criminal justice system and making it impossible for 23 New Yorkers to gather in a relatively small room, Gov. Andrew Cuomo issued an executive order suspending that rule. The state Office of Court Administration shut down grand juries until further notice.
Danny Frost, a spokesperson for Vance, said the Chlupsa case is the only major case dropped by the Manhattan DA so far due to the virus crisis.
Frost said prosecutors handling other ongoing grand jury investigations are still able to issue subpoenas and continue pursuing cases. But he acknowledged that because the grand juries cannot meet in person, they cannot vote to indict.
That’s put all cases pending when the virus struck are now in a state of suspended animation. The stuck-in-time cases include major white collar fraud, public corruption and racketeering prosecutions.
Probes Go On
It’s not just a challenge for Vance’s office: The city Department of Investigation, for instance, had multiple pending cases before grand juries when the virus all but shut courts.
Diane Struzzi, a DOI spokesperson, said Tuesday that the agency’s investigators are finding ways to work around the frozen state of grand juries.
“Not convening grand juries has had an impact on how cases move forward, but that situation has not resulted in the abandonment of any DOI case or a slowdown in DOI’s work,” Struzzi said.
She added that DOI investigators are instead “focusing on case aspects that can be accomplished consistent with remote work and social distancing.”
That’s led to prioritizing investigations that involve a lot of email and records review over cases that require door-knocking and interviewing witnesses, Struzzi said.
The judge who convicted Chlupsa must still approve the motion to vacate that conviction.
On Tuesday, Boxer, Chlupsa’s attorney, stated, “After a long, hard fight, it’s a big step towards justice for Henry.”
But he disagreed with the DA’s assessment that it was still possible to bring a case against his client. Boxer contended the case was fatally damaged by the DA’s office withholding of evidence.
The Chlupsa decision by Vance marked the second time charges against defendants in the big construction bribery case overseen by Florence have been tossed. In February, another judge threw out the case against another engineer, Kyriacos Pierides, calling the scope of the withheld evidence in that case “staggering.”
As THE CITY revealed in January, Florence resigned from the DA’s office and was replaced as head of Vance’s Construction Fraud Task Force. Vance has said his office is reviewing the handling of the bribery case — scrutiny that Frost said Tuesday was ongoing.
Florence has said she turned over the material as soon as she learned of its existence. In her resignation letter, she charged she faced a “hostile work environment,” “bullying” and interference with pending legal cases while for Vance.
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