While some state officials say Gov. David A. Paterson might have testified falsely during a probe of his use of Yankees World Series tickets, it appears unlikely he will face perjury charges, according to a variety of legal experts.
A key reason is the rarity of state prosecutions for the crime, several defense lawyers said. State records show that the felony crime of perjury in the first degree, defined as giving relevant false testimony under oath, is rarely prosecuted in New York State and resulted in only 48 cases in 2008.
Manhattan defense attorney Gerald Lefcourt said perjury is primarily a tool that federal prosecutors use "to get rid of something or to put people in jail."
"It is usually charged in the [New York] state system as something else," said Lefcourt, a former head of the National Association of Criminal Defense Lawyers. "Rarely do you see it by itself."
Prosecutors also would need strong evidence that Paterson never intended to pay for the tickets, experts said.
"That is a tough one to bring, particularly on tickets to a ballgame," said Ronald Fischetti, a criminal defense attorney in Manhattan and adjunct professor at Fordham University Law School.
Earlier this month, the State Commission on Public Integrity said Paterson appeared to have testified falsely under oath during its inquiry about his intention to pay for Yankees tickets used by his son and his son's friend during Game 1 of the 2009 World Series. Paterson has denied wrongdoing.
The commission sparked speculation about possible perjury charges when it referred the matter to Attorney General Andrew Cuomo and the Albany County district attorney's Office to determine if a crime was committed.
Under state law, perjury occurs when false testimony is given under oath about something relevant to a matter under investigation, said James DiPietro, a former Brooklyn assistant district attorney now working as a defense attorney. The testimony must be knowingly false, DiPietro emphasized.
Similar to what Lefcourt has experienced, DiPietro said he couldn't recall the last time he saw a state perjury prosecution.
Fischetti said most perjury prosecutions are carried out at the federal level. A key reason is that federal prosecutors are more likely to uncover false statements in the grand jury process and charge perjury as part of a broader indictment, Fischetti said.
Heather Orth, spokeswoman for the Albany County district attorney, confirmed that "We are in receipt of the referral from the Public Integrity Commission. We are currently reviewing the information and determining the appropriate next step. We will have no further comment at this time."
A spokesman for Cuomo didn't return a call for comment Tuesday.