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‘This Is How Criminals Talk’: Closing Arguments Focus on Ziti

NEW YORK — In the end, it all comes down to ziti.

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‘This Is How Criminals Talk’: Closing Arguments Focus on Ziti
By
JESSE McKINLEY
and
VIVIAN WANG, New York Times

NEW YORK — In the end, it all comes down to ziti.

That was the essence of the government’s closing pitch to jurors in its sprawling corruption case against Joseph Percoco, formerly one of Gov. Andrew M. Cuomo’s top aides and closest friends, now accused of taking more than $300,000 in bribes from three executives in pursuit of state contracts.

The bribes were code-named “ziti,” a reference to the Mafia drama “The Sopranos,” and federal prosecutors seemed to relish Percoco’s use of the term.

In closing arguments Tuesday, a prosecutor, David Zhou, cited emails from Percoco to Todd R. Howe, a lobbyist with connections to the executives, in which Zhou said Percoco was “begging, requesting, demanding ziti.”

“'Where the hell is the ziti?’ ‘I have no ziti,'” Zhou said, quoting from emails Percoco sent from his private AOL account, adding that jurors should know “exactly what Joe Percoco was demanding.”

“He was demanding cash bribes,” Zhou said.

The summations come during the sixth week of the trial in U.S. District Court in Manhattan. Prosecutors have sought to show that Percoco, who served as Cuomo’s executive deputy secretary, sold his influence in the administration after his personal expenses outstripped his income.

“He took that power that was entrusted to him,” Zhou said Tuesday morning. “And he corrupted it.”

But defense lawyers, in their own closing arguments, urged skepticism of the government’s case, which they said hinged upon Howe, a felon with a history of lying, theft and bad debts.

Their point was boosted by the stunning midtrial arrest of Howe, the government’s star witness, after he admitted under cross-examination that he had tried to defraud his credit card company. Howe, who was cooperating with the government after pleading guilty to eight felonies, had his bail revoked, and is being held in jail.

On Tuesday, Zhou tried to downplay Howe’s importance. He said Howe’s testimony was “not the main evidence,” and he asked the jurors to rely instead on a “major paper trail” of emails and bank and phone records.

But Zhou also admitted that Howe was not exactly a perfect witness.

“Everyone in this room agrees that Todd Howe is a criminal,” he said, before arguing that Howe’s seedy history was further proof of Percoco’s and his three co-defendants’ corrupt intentions.

“You know exactly why the defendants got in bed with Todd Howe,” he added. “Because they knew exactly the kind of person Todd Howe was.”

Howe was central to the two schemes alleged by the government, involving Competitive Power Ventures, an energy company seeking to build a power plant in the Hudson Valley, and COR Development, an upstate developer seeking help with state contracts. In both cases, the government accused Howe of facilitating bribes to Percoco through payments to his wife, Lisa Toscano-Percoco.

In one instance, Toscano-Percoco was paid nearly $300,000 over three years for what prosecutors called a “low-show job” with Competitive Power Ventures.

“Ladies and gentlemen,” Zhou told jurors, “you have put more time into this trial than Lisa Percoco put into her $90,000-a-year job.”

A second scheme involved some $35,000 in payments to Percoco from COR, the Syracuse-area developer that has been a major donor to Cuomo and the beneficiary of several multimillion-dollar state contracts. The government alleges that Percoco did several favors for COR, including getting the state to waive a requirement that would have forced the company to hire union employees for a project.

The alleged misdeeds, Zhou said, drove at the very tenets of public service.

“Think about how badly the defendants perverted state government,” he said to the jurors, adding, “That should disgust you.”

Despite Zhou’s efforts at damage control, defense lawyers in their summations homed in on Howe.

Milton L. Williams Jr., a lawyer for Joseph Gerardi, one of the COR executives on trial, asked jurors how they could rely on Howe when Howe could not even rely on himself.

“He can’t even do the right thing by himself,” Williams said, which he said was “as easy as showing up, telling the truth, not getting in trouble, not getting arrested in the middle of the trial.”

The government was so enamored with Howe, Williams said, that it was willing to overlook his continued violations.

Williams likened Howe to the government’s dysfunctional but beloved family member: “real charming, fun to be around” — but “real unreliable, and you can’t trust them.”

“It’s up to you to stop the damage of Todd Howe,” he told the jury.

Daniel M. Gitner, a lawyer for Peter Galbraith Kelly Jr., of Competitive Power Ventures, said the government had tried to “whitewash” Howe out of their closing arguments, even after they “touted” him in their openings.

He appealed to jurors’ emotions, calling Kelly a generous, softhearted man who, in hiring Percoco’s wife, had only been trying to help a friend in need.

“Braith, it’s clear, wanted Joe to like him,” Gitner said, using Kelly’s nickname.

Stephen Coffey, a lawyer for Steven Aiello, another COR executive and the last co-defendant, cast Aiello as an innocent victim of Howe, whom he called “the only person who was spinning this tangled web.”

“Todd Howe is a walking, talking reasonable doubt,” Coffey said.

Percoco, a burly and sometimes brash presence during his days at Cuomo’s side, did not testify in his own defense. Nor did Gerardi, Aiello or Kelly.

Defense lawyers scored a small victory Monday when the judge dismissed one of the counts against Percoco. Closing arguments, including from Percoco’s lawyer, are expected to continue until Thursday, after which the jury will begin deliberations.

Cuomo, a second-term Democrat facing re-election in November, has not commented on the trial, citing his respect for the legal process. Prosecutors have not accused him of any wrongdoing.

But the depiction of Percoco’s actions while he was working for, and closely alongside, Cuomo — including fishing trips, abusive banter and, of course, his alleged affection for “ziti” — has not been flattering to Albany.

“This is not how honest and honorable public servants talk,” Zhou said. “This is how criminals talk.”

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