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Judge declares mistrial, schedules retrial for Malcolm Smith, Vincent Tabone

Senator Malcolm Smith, left, walks out of federal

Senator Malcolm Smith, left, walks out of federal court in White Plains with attorney Gerald Shargel after a federal judge declared a mistrial in the third week of his corruption trial on Tuesday, June 17, 2014. Credit: Chris Ware

A federal judge Tuesday declared a mistrial in the third week of the corruption trial of Queens state Sen. Malcolm Smith and scheduled the retrial of the former Democratic majority leader on bribery conspiracy charges for January.

Smith and bribery conspiracy co-defendant Vincent Tabone, a one-time Queens Republican leader, both asked for a restart to the trial after prosecutors revealed new information last week. But the trial of former City Councilman Dan Halloran, a co-defendant who opposed starting over, will resume next week with the same jury.

Halloran's lawyer, Vinoo Verghese, said his client had been in "purgatory" since he was accused in April of last year and was concerned about the delay and cost of a retrial. "He doesn't want to wait another seven months to clear his name," Verghese said.

Smith and Halloran are charged with scheming to bribe Tabone and other GOP county leaders in New York City to win permission for Smith to get his name on the 2013 Republican mayoral ballot.

An undercover FBI agent posing as a rich developer willing to pay bribes to help Smith and an informant -- Rockland County political donor Mark Stern -- set up the sting. Prosecutors last week gave the defense access for the first time to a year's worth of conversations -- many in Yiddish -- recorded from Stern's phone.

Defense lawyers said they needed two weeks to review the information. U.S. District Judge Kenneth Karas, who had told the 15 jurors the case would be over this month, told them Tuesday it would probably last until mid-July and asked how many could continue to serve.

Karas concluded four of the jurors had serious conflicts. While a trial can go forward with 11 jurors if both sides agree, lawyers for Smith and Tabone -- who had asked for more time to review the new tapes and wanted a mistrial and a fresh start -- said they would not consent.

The judge concluded that continuing the trial for them was impossible and set their retrial for Jan. 5.

But Halloran had never asked for a mistrial, and forcing him to be tried before a different jury created a risk that he might successfully claim violation of his constitutional protection against double jeopardy -- being tried twice for the same crime.

Prosecutors and the judge offered him the option of resuming next week with the same jury and said that because a one-defendant trial would be shorter, the conflict for one of the jurors who asked to be relieved could be accommodated.

Halloran's trial will resume June 25 with 12 jurors. Verghese said he would agree to going forward with 11 jurors if one has to drop out.

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