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Malcolm Smith corruption case judge may declare mistrial

Queens Senator Malcolm Smith arrives at U.S. District

Queens Senator Malcolm Smith arrives at U.S. District Court in White Plains for jury selection for his fraud and bribery trial on June 2, 2014 in White Plains. Credit: Patrick E. McCarthy

The federal judge presiding at former Senate Majority Leader Malcolm Smith's corruption trial said Thursday he may declare a mistrial because the defense hasn't had time to review hundreds of taped conversations of an FBI informant that were just turned over.

U.S. District Judge Kenneth Karas in White Plains said he was still weighing the possibility of trying to keep going or bringing back the jury after a long recess, but said jurors had other plans and the material -- much of it in Yiddish -- was too voluminous to digest quickly.

"The problem is we're talking about hundreds of calls at a minimum," Karas said. "It puts the defense in a really, really tough position. . . . There is fodder for cross-examination in these recordings that didn't exist."

Smith, an eight-term Democrat from Queens, is charged along with former New York City councilman Dan Halloran and former Queens Republican official Vincent Tabone with participating in a bribery conspiracy to win Smith a spot in the 2013 GOP mayoral primary.

Smith and Halloran are accused of working with the informant and an undercover FBI agent who posed as corrupt businessmen and secretly recorded meetings about paying off Tabone and other Republican county leaders to get permission to allow Smith to cross party lines.

The trial, a centerpiece in Manhattan U.S. Attorney Preet Bharara's prosecutorial campaign against Albany corruption, began two weeks ago. Karas scheduled a hearing Friday to discuss what to do, and put testimony on hold until Monday. Typically a retrial is permitted after a mistrial, but not always.

The informant, an Orthodox Jewish Rockland County political donor named Mark Stern who began cooperating with the FBI after facing charges of engaging in a mortgage and bank fraud scheme, had agreed to have his phone wiretapped for more than a year.

The government must give the defense all witness statements. But Stern's calls were not all turned over before trial because prosecutors made a strategic decision to not call Stern as a witness, and to try to present their case through the undercover FBI agent alone.

Last week, however, an FBI agent testified that the calls included conversations with two friends who introduced Stern to Smith and Halloran. Karas ruled that since the defendants claim entrapment, they should get to review all calls by the informant who helped set them up.

Smith's lawyer, Gerald Shargel, told Karas that a spot check of the recordings indicated there were 9,000 calls or text messages, including 92 hours of conversations, 60 to 70 percent in Yiddish, and that they had only been able to find one court-certified Yiddish translator to help.

Prosecutors said there were only 737 calls longer than two minutes, offered to help with the translation and urged Karas to avoid a mistrial. But Shargel said early checks indicated calls that went "to the heart of the case.""We can't effectively represent our clients without having access to this information," he said.

Karas on Thursday allowed jurors to hear the final set of government recordings of meetings with the defendants, and told them to not return until Monday. He did not tell them the trial was in jeopardy.

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