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Court orders Percoco surrender postponed

Joseph Percoco arrives for his sentencing hearing at

Joseph Percoco arrives for his sentencing hearing at the federal courthouse on Centre Street in Manhattan on Sep. 20. Credit: Jeff Bachner

A Manhattan federal appeals court has given Joe Percoco, a former top lieutenant to Gov. Andrew M. Cuomo, a brief postponement of his scheduled March 1 surrender to begin serving a prison sentence on corruption charges.

“It is hereby ordered that a stay of surrender is granted only until the matter is considered and decided by a three-judge panel in the regular course, and subject to further orders of that panel,” 2nd U.S. Circuit Court of Appeals Judge Peter Hall said in a brief order.

Percoco, 61, of South Salem, was sentenced last year to six years in prison after his conviction of taking $300,000 in bribes to do favors for an energy company and a Syracuse developer. The 2nd Circuit order, issued Friday, was posted on the court docket Monday.

It doesn’t mean Percoco remains free for months, until his appeal is heard.  He will  stay free until a three-judge panel decides if he has raised significant enough issues to remain free until the appeal is decided. The court set a March 5 hearing on that question.

Former Assembly speaker Sheldon Silver got a similar stay of his surrender date for a corruption conviction on Sept. 25 last year. At an Oct. 3 hearing, a 2nd Circuit panel decided he should stay free at least until briefs were submitted to the judges hearing his appeal. Silver is still out.
Hall, who gave no reasons for his order, also stayed the surrender of a Percoco co-defendant, Syracuse businessman Steve Aiello. Percoco's appeal is based on a claim that the prosecution evidence was legally insufficient, as well as on several legal issues.
He contends, for example, that prosecutors had to prove he was paid a bribe for a specific act and could not rely on a so-called "retainer theory" that he was given benefits in return for providing assistance when needed.
Manhattan U.S. District Judge Valerie Caproni had previously refused to grant bail, pending appeal, to both Percoco and Aiello.

A spokesman for Manhattan U.S. Attorney Geoffrey Berman declined to comment.


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