The U.S. Supreme Court has agreed to take up the case of Joseph Percoco, who spent years as former Gov. Andrew Cuomo’s right-hand man, and consider whether private citizens can be convicted of depriving the public of their honest services.
The court signaled Thursday that it has accepted Percoco’s request to review part of his case, in which he was convicted of three bribery-related felonies that focused in part on $35,000 he accepted from a Syracuse-area developer when he was working for Cuomo’s campaign – and not technically on his government staff.
At the time, Percoco had been working as Cuomo's 2014 campaign manager. But that position was temporary. He soon returned to become Cuomo's executive deputy secretary, a title that undersold his role as the then-governor's most-trusted confidant.
Percoco, who was convicted in 2018, was sentenced to six-years in federal prison, but was released to a Brooklyn halfway house in December. He remains there today, according to the Federal Bureau of Prisons' inmate registry.
"We are pleased with this development and optimistic about the outcome," Percoco's attorney Barry Bohrer said in an email Thursday.
Percoco was a longtime aide and close personal friend to Cuomo, who had referred to Percoco in public as a brother. He served as Cuomo's campaign manager in 2010 and 2014.
In all, a jury convicted Percoco of taking more than $300,000 in bribes. Of that, $35,000 came from COR Development, which leaned on for a variety of favors – including that he convince state officials to not require a project labor agreement for a project that increased COR's costs.
The remaining $287,000 came from Competitive Power Ventures, a Maryland-based company that was building a natural-gas power plant in Orange County and leaned on Percoco for help. Those payments were routed through Percoco's wife, Lisa, who was hired by the company – and paid through an intermediary to hide the source – but did little actual work, prosecutors alleged.
Percoco's plea to the Supreme Court focuses on the $35,000 payment.
He was convicted under what's known as the "honest services" statute, which allows for a conviction when someone defrauds a victim of their right to honest services. It's often used in public corruption cases where someone defrauds the public.
But in his request to the court, Percoco's attorneys claim it shouldn't apply to him since he was not technically a government official at the time – even though prosecutors showed he would return to the government payroll a short time later and maintained access to his government office throughout. He's challenging a ruling by a panel of judges on the 2nd U.S. Circuit Court of Appeals that upheld his conviction.
"Percoco’s removal from the state payroll materially changed his relationship with the public under state law, transitioning his role from a public servant to a private individual seeking political gain," Percoco's attorneys wrote in a filing with the court. "Yet the panel nevertheless held him accountable as a public official."
Nicholas Biase, a spokesperson for the U.S. Attorney's Office in Manhattan, declined comment.
In its own filing with the court, the U.S. Department of Justice wrote that Percoco's conviction should be upheld because the evidence showed he was "'in reality' a public official at the time," despite not being on the payroll.
"Although Percoco had nominally left his post in the Executive Chamber, he in fact continued to carry out that role," the department wrote.
The court also agreed to take up an issue raised by Louis Ciminelli, a Buffalo developer convicted of fraud in a related case that was focused on bid rigging in the “Buffalo Billion” – a Cuomo-era economic-development program.
At Ciminelli’s request, the Supreme Court agreed to consider the “right to control” theory under which he was convicted. That theory allows for a property fraud conviction if someone has deprived a victim of “complete and accurate information” when making an economic decision. In Ciminelli's case, the prosecution claimed he defrauded a state-aligned board that awarded contracts for Buffalo Billion projects.
The Supreme Court's ultimate rulings could have a significant impact on the convictions of other defendants in the case, including COR Development's Steven Aiello and former SUNY Polytechnic Institute president Alain Kaloyeros, who were convicted of similar charges and are continuing to appeal.
The court issued the final rulings of its most-recent term on Thursday. It is scheduled to reconvene later this year.
This article has been updated to include additional including comment from Percoco's spokesperson.