Gotham Gazette

The Place for New York Policy and politics

Criminal Justice

Criminal Justice

Judge Rejects 'Genius' Testimony


gay marriage

A self-described "genius" has failed to convince the judge hearing his divorce case that he alone, through his "unique personal traits," is responsible for accumulating a $450 million fortune in the world of finance.

Henry Silverman, 68, a private equity executive submitted affidavits from three psychologists in an effort to present expert trial testimony to support his theory of his success. His wife, though, filed a successful motion to preclude such evidence. At the end of a 30-year marriage, Nancy Silverman 66, urged the court to make a distribution of marital assets based on equitable principles that would recognize her contributions.

Dividing the Goods

Under New York State's law of equitable distribution, the division of a couple's assets does not depend on who possesses title to property and does not require that the parties make the same kind of contributions. In this instance, one spouse, the husband, worked outside the home, while the other, the wife, did not. Still, her entitlements would be based upon the totality of the circumstances, contributions and prevailing law.

In rejecting Mr. Silverman's approach, acting Supreme Court Justice Laura Drager wrote that the state's equitable distribution law evaluates "the marital economic partnership." While many statutory factors must be considered, Drager found that the husband's psychological assessment of his "personality and innate intellectual talents," did not constitute "evidence of his contribution to the accumulation of marital assets subject to equitable distribution." Therefore, the court will not consider expert evidence that the husband claimed would establish a "direct and statistically compelling relationship between personal attributes ... and the financial success he achieved."

Even though the husband claimed his argument was "scientifically based," the judge noted that it was unique and that neither side submitted any legal precedent for or against it. The judge then found that such testimony would not assist her in determining the parties' "relative contributions to the accumulation of wealth during the marriage."

A Case of Rough Justice?

Mr. Silverman argued that rejection of his psychological testimony would subject him to "rough justice." But what he called "rough justice" is exactly what courts are mandated to apply. That is, the judge would consider all the factors enumerated in the domestic relations law and apply them to the facts of the case, exercising her judgment and discretion. "The court," Drager wrote, "cannot relinquish that determination to an expert witness."

She rejected the defendant husband's reliance on what he termed, "personal capital" and its relationship to the wealth amassed. Her decision granted the plaintiff wife's motion to preclude the psychological testimony.

It is not in dispute, the judge said, "that the husband brought to his work innate abilities and acumen that helped cause the business to succeed." However, she continued, "In determining how to distribute the assets accumulated as a result of that partnership, the court must consider the contribution made by the husband based on his innate talents, business acumen, conduct and any other attribute or effort," as well as the contributions made by the wife that, she contended, involved "managing the couples' domestic and social life and raising their daughter, and the social introductions and other efforts she claims to have made that assisted the husband in business."

In her opinion, Drager wrote, "In purporting to prove that the success of the business could be attributed solely to the husband's innate genius, the expert opinion evidence offered by the husband offered no assistance" that would help the court equitably distribute the couple's estate "based on the contributions of each party to the marital partnership."

While the defendant's abilities clearly contributed to the success of his business, innate mental abilities or characteristics come into play when considering the contributions of the spouse without the business – the "non-titled partner" -- or in this case Mrs. Silverman, not her husband. Therefore it is Mrs. Silverman's contributions that are relevant for the analysis, not her husband's.

This telling language appears in a footnote, rather than in the body of the decision. Still, the judge wrote, the success of Mr. Silverman's business might well be attribute to "external forces," such as personal connections or luck," as well as an "innate genius."

Emily Jane Goodman is a New York State Supreme Court justice

As Cuomo's Prison Closings become Reality, Some Question the Specifics


For reader comments on whether to close Arthur Kill, go here.

Brooklyn house of detention
Gov, Andrew Cuomo has opted to close the Arthur Kill Correctional Facility on Staten Island while leaving many prisons in northern New York state open.

For reader comments on whether to close Arthur Kill, go here.

(To read about Mayor Michael Bloomberg's $621 million plan to build a new city jail and renovate two others, go here.)

By many counts, the New York state prison system has some 8,000 empty beds. On June 30, the Cuomo administration announced a move that would cut that number almost in half.

The plan would close seven prisons across the state -- doing away with 3,800 of those empty beds.

Strikingly, 50 percent of the beds being eliminated are in New York City, while the city houses only 25 percent of the state's prison population. In particular the plan would close the one medium security prison in the five boroughs -- Arthur Kill on Staten Island –- while leaving open similar facilities in rural upstate communities. More than 60 percent of the state's prisoners are from New York City.

Cuomo avoided shuttering the prisons with the most vacancies, many of which are women's prisons. One such facility, Albion Correctional has 66 percent of its beds empty. It will remain open.

This spring’s state budget deal gave Cuomo the power to shutter prisons of his choosing after consulting with legislators. Criminal justice advocates have been clamoring for Cuomo to downsize the prison system, which his father expanded, partly to save money.

Advocates also believed that shutting prisons in rural northern communities would result in fewer New York City residents being incarcerated far from their homes. Letting people serve closer to their homes would enable them to maintain contact with family members -- something advocates say reduces recidivism and bolsters reentry to civil society.

Cuomo tackled the issue head on in his state of the state address -- seemingly addressing legislators from northern New York who cling to the jobs prisons provide in to their communities. "An incarceration program is not an employment program," Cuomo said. "If people need jobs, let's get people jobs. Don't put other people in prison to give some people jobs. Don't put other people in juvenile justice facilities to give some people jobs. That's not what this state is all about. And that has to end this session."

Meanwhile, unions as well as communities across the state, particularly those in the economically hard-pressed upstate areas that rely on prisons for jobs, lobbied behind the scenes and protested loudly as the Cuomo administration mulled over which prisons would get the axe.

The closing plan announced at the end of June will probably save the state money. But it almost certainly will not end up with New York City residents serving sentences near their homes. In fact, it could have the opposite effect.

Padlocked Prisons

The Cuomo administration's list surprised many observers. Prisons in northern New York were thought to be some of the most vulnerable, but instead two facilities in the five boroughs, one near Buffalo, and four in mid to upstate were targeted for closing.

Scheduled for closure are Buffalo Work Release (Erie County), Camp Georgetown (Madison County), Summit Shock (Schoharie County) and Fulton Work Release (Bronx County); and three male medium security facilities: Arthur Kill (Richmond County), Mid-Orange (Orange County) and Oneida (Oneida County). Four of the prisons -- Buffalo Work Release, Camp Georgetown, Summit Shock and Fulton Work Release -- are minimum security facilities.

The administration has said inmates will be transferred to other facilities. Communities targeted for closings will have access to a $50 million fund and to tax credits. It is expected that the closings will save the state $72 million in 2011-12 and $112 million in 2012-13. Although a timetable for closing all the facilities is not clear Assemblywoman Annie Rabbit told constituents that the Mid-Orange facility will be closed on Dec. 1.

The list received mixed reactions. The response from unions was muted, perhaps because they were involved in negotiations about the closings.

The New York State Correctional Officers & Police Benevolent Association did not return calls for this article. However union president Donn Rowe issued a press release saying, "The closure of any prison in New York State represents a significant threat to the integrity and safety of the New York State prison system." It concluded, "We are obviously very disappointed by today’s action but first and foremost with any action must be to preserve the safety of the men and women who work in and protect these prisons. We will continue to work with the governor’s team and monitor the situation closely."

Soffiyah Elijah of the Correctional Association, which did major lobbying to eliminate the Rockefeller Drug Laws, praised Cuomo for acting on his promise to do away with empty prison beds but expressed concern about which prisons the governor chose to shut. In particular, she notes that the program will eliminate one third of the state's work release beds. According to Elijah, New York’s work release programs has already been cut by 25,000 slots since the late 1990s to only 1,900 in 2010.

"Work release helps people in prison gain critical employment skills to prepare them for a smooth transition back to their communities," said Elijah in a statement.

Staten Island Shutodwn

Even more troubling to Elijah is that 50 percent of the total beds targeted for elimination are in New York City. The 931-bed Arthur Kill Prison represents one of six state prisons in the five boroughs. It now houses 794 inmates.

Elijah says she has heard from a number of families who say the closing of Arthur Kill would keep them from visiting incarcerated relatives.

"People from Staten Island have a major concern. The closure will create quite a hardship for them. They can't make the long trip to visit inmates upstate because of physical or financial hardship." Elijah said. She added maintaining a connection with family is "one of the prime factors in reentry and avoiding recidivism."

Staten Island Sen. Diane Savino says she is mystified by the Cuomo administration's decision to close Arthur Kill because it flies in the face of one purported mission of prison downsizing -- keeping prisoners closer to their homes.

"One of the things that the governor wanted to accomplish with prison closures was addressing the issue that the majority of prisoners come from downstate; they're sent upstate, they're separated from their families and communities, which contributes to recidivism in many ways. From that perspective it really makes no sense," said Savino. "Here's a prison that's easy to get to, where children can maintain relationships with their fathers, men are able to maintain relationships with their communities. It doesn’t make any sense to send them far away."

Savino says she recently visited the prison, "to talk to staff there to get a handle on what will happen to not just the people who work there, who are almost entirely Staten Islanders, but also the inmates, and what we found was that on every level, fiscally and policy wise, the decision to close Arthur Kill is the wrong one," said Savino.

There are over 400 employees at Arthur Kill and at least 300 of them are from Staten Island.

Savino says the state spent nearly $40 million on upgrades to Arthur Kill for over a decade and that the process of upgrading the power plant and boilers is still underway. "So whatever money would be saved allegedly by the closure of the facility has already been lost in the investment," says Savino.

Not everyone on Staten Island, though, sees shuttering Arthur Kill as a bad thing. Two Republican state legislators see opportunity in its closing.

"There could be a silver lining for that part of my Assembly district," said Assemblymember Lou Tobacco told the Staten Island Advance in March when the closing was just rumored. He added that he doesn't hear people saying, "'Hey, I'm glad I have a prison in the neighborhood.'"

"It is 160 acres of choice Staten Island land," Sen. Andrew Lanza told the Staten Island Advance. "There are plenty of economic uses, retail development like a Wegmans, a corporate park. The (current) jobs could be replaced with 2,000 to 3,000 jobs."

City Councilmember Vincent Ignizio agrees. He said there has long been resistance to having the prison in the area. "Outside of the people who work in the prison, there is not a huge feeling of loss amongst the community but more of a concern for what will come in its place," Ignizio said.

In fact Ignizio sees the closing as an opportunity for economic development for an "underdeveloped part of my district." He thinks the property could be snatched up quickly for development -- specifically by Wal-Mart.

"There are major retailers who have interest in coming to the south shore of Staten Island. We know that Wal-Mart has been looking around in the community of the south shore of Staten Island as a potential site, so there is a host of retail opportunities now and additional land that wasn’t on the market a couple of months ago."

Savino scoffs at the idea. "Whatever happens with the prison, it will years before anything else is on that property." She says it could take more than half a year to close the facility and transfer inmates.

Savino estimates it could take two to five years before something could replace it. "So what happens to all of the businesses in that community that rely on the prison for its business? What do they do, wait patiently for something to happen?"

North Country Jobs

In announcing the plan Cuomo said it was "the result of very careful and detailed analysis and deliberation" and targeted facilities that could be closed "without compromising public safety "

Some legislators see a clear reasoning behind the closures.

"It's very good news for the North Country. The governor understands that we need more private sector development before we can stop relying on government jobs." Republican Sen. Betty Little of Queensbury told the Post Star. The article noted that Little said prisons "like Arthur Kill in Staten Island, will be a much easier sell in the private sector than those in rural communities and their closure will have a smaller effect on local unemployment lines."

Advocates say that Cuomo's closures will do nothing to change the fact that prisoners from the five boroughs drive the economy of much of northern New York.

"We've encouraged the governor to put money into reentry programs and to focus on closing maximum security facilities upstate," said Elijah.

She says that many prisoners are mistakenly classified as maximum security risks. Data provided by the Department of Corrections shows a 22 percent overall decline in prisoner population since 1999 –- to around 56,000 today. The number of minimum and medium security prisoners has declined even more sharply -– a 19.5 percent drop in inmates at medium security prisons between 2001 and 2010 and a 57.2 percent decline in those at minimum security facilities. But the decline in maximum security prisoners was only 2 percent. From 2001 to 2010, the number of inmates housed at maximum security prisons declined from 25,331 to 24,822.

Elijah says that decline should be much steeper, as prisoners who do not pose much risk are now lumped into maximum security status. Elijah would like to see prisoners released earlier after participating in rehabilitation programs. She also advocates the use of more alternative sentencing to further reduce the prison population, paving the way perhaps for more prisons to be shut.

That could be risky she admits. "It’s clear that any elected official is courageous in proposing prison closures. It has a dangerous effect; there is so much push back," Elijah said.

Will there be more closings? "Only Gov. Cuomo knows that. We hope there will be more. There were reportedly 8,000 unused beds, and he has closed about half of them," said Elijah.

However, experts say that the remaining beds are not quite empty; the Department of Corrections says about 2,500 of them must be kept open to move prisoners who may be sick or become security risks. Nearly another 2,000 are supposed to be kept open in case there is an influx of prisoners, much as there was in the days when Gov. Mario Cuomo built so much of today’s prison system.

Zach Bergson contributed reporting on this story.

City Plans to Build, Renovate Jails


Brooklyn house of detention
Photo by Videot
The city is renovating the Brooklyn House of Detention on Atlantic Avenue near Brooklyn Heights but has abandoned plans to expand the facility.

(To read about Gov. Cuomo's prison plan, go here.)

While Gov. Andrew Cuomo begins an historic effort to shut prisons all over New York state, Mayor Michael Bloomberg is building, reopening and renovating jails throughout the city.

The administration's prison plan, which was originally priced at $735 million but scaled back to $620 million, will include a brand new 1,500 bed jail on Rikers Island and the reopening of the Brooklyn and Queens Houses of Detention. Although the mayor's plan reopens and builds new jails in the city, jail capacity will decrease from 19,400 beds to about 16,550. The Department of Correction cited dilapidated facilities and a drop in the crime rate as the motive behind this proposal to "right-size" the jail system.

The construction of the new Rikers Island facility is by far the most expensive portion of the plan, with a price tag of about $563 million. The department says the new building will replace deteriorated temporary housing units.

"We anticipate that the new 1,500 bed jail will be a modern facility incorporating correctional best practices, including staff efficiencies. It should save the city money in the long run," Department of Corrections spokesperson Sharman Stein said.

The city also will reopen and renovate jails in Brooklyn and Queens that have been shuttered since 2002 and 2003 respectively. According to Stein, the Brooklyn House of Detention will open its doors this fall and its Queens counterpart in the summer of 2012.

The plan to reopen the Brooklyn House of Detention was initially met with opposition from the local community because it included a proposal to increase the size of the prison. According to the Community Board manager Steven Levine, when this particular proposal was struck down, most of the opposition to the jail reopening went with it.

"The majority of the board members are comfortable with the facility as currently scaled remaining where it is," he said.

Levine said people living in close proximity to the jail have expressed concern, however. "There are people who live in the condominium across State Street who have told me that when they were looking at those units their broker told them the jail was closed forever and would not reopen. They weren’t happy to learn otherwise," he said.

City Councilwoman Letitia James, who represents the district where the house of detention is located, said she does not oppose the reopening of the jail now that the expansion plan has been abandoned. However, she raised concerns about the mayor's jail spending plan as a whole.

"My concern is the social network of the city of New York and not trying to build more jails, particularly at a time where the mayor is alleging crime is down," she said. "A significant number of my schools are old and they're not being rebuilt."



Print Friendly and PDF

Editor's Choice


Gotham Gazette: New York Voters Approve $4.2 Billion Environmental Bond Act
New York Voters Approve $4.2 Billion Environmental Bond Act
Gotham Gazette: 
New York City Voters Approve Racial Justice Ballot Measures
New York City Voters Approve Racial Justice Ballot Measures
Gotham Gazette: 
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Housing Development in New York City Slows to a Crawl as Officials Debate Tax Incentives
Gotham Gazette: 
City Council Examines Low Voter Turnout, Moving Local Elections to Even Years City Council Examines Low Voter Turnout, Moving Local Elections to Even Years