A federal appeals court judge has temporarily blocked former Town of Oyster Bay official Frederick Ippolito from going to prison until a bail hearing is held to determine if he can remain free during an appeal.
Ippolito was scheduled to report Friday to the Federal Medical Center prison in Fort Devens, Massachusetts, to begin serving 27 months, after being sentenced in September on one count of a six-count tax-evasion indictment as part of a plea bargain.
But late Thursday afternoon, U.S. Circuit Court Judge Susan Carney in Manhattan issued a stay of Ippolito’s sentence in a two-sentence order without explanation.
Ippolito, 77, of Syosset, was the town’s former commissioner of planning and development.
In pleading guilty to the tax charge, in connection with failing to pay income tax on $2 million, Ippolito had agreed not to appeal if he was sentenced to 27 months in prison.
But in arguments to the Second Circuit, Ippolito’s attorney, Robert LaRusso had said that despite that agreement, Ippolito was entitled to an appeal because U.S. District Court Judge Leonard Wexler went outside the scope of the case.
“Instead of focusing on the nature of the charged offense . . . the court talked principally about unfounded beliefs and speculation concerning corruption in the town of Oyster Bay,” LaRusso said in his argument to the appeals court.
LaRusso then quoted Wexler as saying: “I am going to sentence him, based upon all what I have said of what’s going on with this town . . . something is corrupt . . . I am cognizant of the seriousness of these charges, even though he’s not charged with that [corruption] I can consider all violations and I am.”
LaRusso said if an appellate court rules that Ippolito should be resentenced, a different judge should be appointed to handle the case.
“Though the record does not permit a finding that Judge Wexler is personally biased against Ippolito, ‘an objective observer might nonetheless question impartiality,’” LaRusso argued, citing a court decision on a similar legal issue.
Ippolito pleaded guilty in January to evading taxes in connection with $2 million in outside consulting fees he received while working as the town’s planning and development commissioner. The money came from Carlo Lizza & Sons, a paving contractor that did business with the town, as well as from the Lizza family trust, according to federal prosecutors.
At the sentencing, Wexler said town officials were well aware of Ippolito’s relations with the Lizzas and both they and Ippolito should have known the situation was an “obvious conflict of interest.”
But LaRusso argued to the appeals court that Ippolito had not been charged with having a conflict of interest.
Federal prosecutors Catherine Mirabile and Raymond Tierney, in opposing the stay, noted that a judge is entitled to take into account the totality of a person’s actions in imposing a sentence. They said legal precedent made it unlikely for a sentence resulting from a plea bargain to be overturned, except in the most unusual circumstances — which, they said, this situation did not encompass.
During the sentencing hearing, prosecutors noted that “Ippolito touted his career in public service.”
Then, court papers said, prosecutors went on to say: “While the case was not per se a case of public corruptionthe court could consider a totality of the circumstances, including the responsibility of a public servant to follow the same rules and regulations as others are required to follow.”
LaRusso said in an email: “We are glad the Appeals Court granted a stay to Mr. Ippolito, and look forward to presenting our arguments on the merits of our appeal.”
Wexler, in Central Islip, had denied the stay of the September sentencing to Ippolito last Friday. LaRusso, of Mineola, then appealed that ruling to the Second Circuit Court of Appeals.
Nellin McIntosh, a spokeswoman for federal prosecutors for the Eastern District, declined to comment on the ruling.