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Judge rejects John Venditto lawyers’ mistrial request, court papers show

Defense attorneys had argued that hypothetical questions prosecutors asked were intended to unfairly prejudice the jury against their client.

Attorney Marc Agnifilo, left, walks out of federal

Attorney Marc Agnifilo, left, walks out of federal court in Central Islip with his client John Venditto Thursday evening. Photo Credit: James Carbone

This story was reported by Robert E. Kessler, Bridget Murphy, Emily Ngo,Andrew Smith and Ellen Yan. It was written by Ngo and Yan.

A federal judge rejected a request to declare a mistrial in the corruption case of former Oyster Bay Town Supervisor John Venditto but agreed to strike out several government questions and witness answers that his attorneys said were intended to prejudice the jury.

Marc Agnifilo and Joshua Kirshner of Manhattan on Friday morning had filed a motion arguing that hypothetical questions asked by prosecutors this past week of a bond investor and an outside town auditor were not designed to seek information but were intended to unfairly prejudice the jury against their client.

In their request, Venditto’s attorneys cited prosecutors’ use of hypothetical questions as “inappropriate” and “egregious” because they asked the witnesses what they would have done if they had known Venditto had lied or accepted bribes.

“Don’t hold your breath on the mistrial,” U.S. District Judge Joan M. Azrack told the attorneys in court.

In a Friday night ruling, Azrack agreed that at least eight of the questions and answers were either inappropriate, “potentially inappropriate” or even appropriate but would be barred from jury deliberations in an abundance of caution.

“I have considered the potential prejudice raised by these and similar questions and find that a mistrial is not warranted here,” she wrote. “If defense counsel had objected to these specific questions at the time, any potential prejudice could have been minimized.”

She downplayed any potential harm to Venditto and offered to instruct jurors Monday and just before deliberations to disregard those questions and answers because hypothetical situations are not evidence.

“I will also reiterate in this instruction that ‘You and you alone are the judges of the facts,’ ” Azrack wrote.

The defense’s motion came 10 weeks after the trial began, with jury deliberations possible next week.

“There is simply no precedent for this type of questioning,” they wrote, saying it was “condemned” in a previous case and is “equally inappropriate here.”

But federal prosecutors, in a filing responding to the motion, argued the use of hypothetical questions was legally proper in examining the “quality and integrity” of Oyster Bay’s management, which they said was key to the charges against Venditto.

They cited three previous cases where courts ruled such questions are “relevant and probative” when they concern a defendant’s actions in the context of a securities fraud prosecution, including that of pharmaceutical executive Martin Shkreli, whom Agnifilo represented.

Before the judge’s ruling, Assistant U.S. Attorney Catherine Mirabile had said in court that the prosecution may want to call other witnesses Monday morning if the judge decided to strike some testimony from the record.

Venditto and former Nassau County Executive Edward Mangano are fighting charges that they took bribes from restaurateur Harendra Singh in exchange for helping Singh secure hundreds of thousands of dollars in county contracts and more than $20 million in town-guaranteed loans.

Singh has testified that he provided the former officials with perks that included free vacations for the Mangano family and a no-show job for Mangano’s wife, Linda, that paid $450,000, and free meals and free limousine services for Venditto.

Venditto, 68, of North Massapequa, and Mangano, 56, of Bethpage, face charges that include conspiracy to commit federal program bribery and honest-services wire fraud, securities fraud for Venditto and extortion for Mangano.

Linda Mangano, 54, of Bethpage, is charged with conspiracy to obstruct justice, obstruction of justice and making false statements to the FBI.

The three have pleaded not guilty. Their trial begins its 10th week Monday in Central Islip.

On Friday, Azrack said while hearing arguments from the attorneys about the wording of instructions on the law that jurors will get, that she had read jury instructions from the corruption trials of Sheldon Silver, the former state Assembly speaker convicted for a second time on Friday, and Joseph Percoco, former aide to Gov. Andrew M. Cuomo. Percoco was convicted of corruption charges by a Manhattan federal jury in March.

Earlier in the day, Venditto’s lawyers in their motion focused on questions that prosecutors had asked of Donald Hoffmann, a bond auditor, and Patrick Strollo, a bond investor.

Mirabile and Raymond Tierney, the prosecutors, had asked those witnesses if their investing decisions would have been different had they known certain hypothetical facts.

Those hypothetical facts included core claims at the trial — whether Venditto lied to town attorneys, whether he accepted bribes, whether he knew if the town backing loans for Singh violated the state constitution.

The lawyers focused in particular on a question asked of Hoffmann: “If you learned that, as has been alleged by the government, that a number of Town of Oyster Bay officials had been accepting bribes from the concessionaire, would you expect that fact to be disclosed to you once it was discovered?”

Agnifilo and Kirshner wrote, “The question seemed to stun even the witness who remained mute a number of seconds and then finally responded, ‘I’m hesitating just based on time frames and who is certain.’”

The lawyers argued these questions were nothing more than impermissible grandstanding masquerading as a search for the truth.

The prosecution asked in its filing Friday that the court not reverse its repeated overruling during the course of the trial of defense attorneys’ objections to those questions.

Prosecutors said the allegation that Venditto made “material misrepresentations and omissions to the TOB’s [Town of Oyster Bay’s] securities offerings in order to fraudulently induce investors to invest in TOB’s securities offerings” is central to the case, specifically that the town supervisor concealed the town-guaranteed loans for Singh.

“The government elicited some of its testimony as to materiality through limited hypothetical questions,” prosecutors wrote. “The government has not asked witnesses to assume facts not in the evidence before answering.”

The trial is expected to continue with closing arguments in Central Islip on Monday.

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