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One Hundred Million Dollar Federal Civil Rights action against former Governor Elliot Spitzer

Spitzer, Nyra, Prosecutors And Private Investigators Individually Named In Civil Conspiracy Claim

For Immediate Release

Todd D. Greenberg, Esq.
Addabbo & Greenberg
118-21 Queens Blvd., Suite 306
Forest Hills, New York 11375
Phone: 718-268-0400
Cell: (917) 685-5612
Fax: (718) 585-9869
[email protected]

At a news conference in Queens, New York, attorneys Todd D. Greenberg of Forest Hills and Paul DerOhannesian of Albany announced the filing of a One Hundred Million ($100,000,000.00) Dollar Federal Civil Rights action against former Governor Elliot Spitzer, the New York Racing Association (NYRA), Assistant Deputy Attorney General John Dormin, Assistant Attorney General Meryl Ann Lutsky and New York Police Investigator Paul Borella, all named Individually. Also named in the Federal action is the firm Safir Rosetti, LLC, and employees Fred Baldino and David Samuel, a private investigation firm hired by NYRA to help implement reform dictated by a Federal Deferred Prosecution Agreement entered into by NYRA. The lawsuit was filed on behalf of Mario Sclafani, the former NYRA Clerk of the Scales and Braulio Baeza, the Assistant Clerk of Scales and Hall of Fame jockey. The lawsuit alleges that the defendants participated in a civil conspiracy to violate the civil rights of plaintiffs Sclafani and Baeza and includes allegations of a false arrest, false imprisonment, malicious prosecution, defamation and a conspiracy in violation of the Constitutional Rights of Sclafani and Baeza. The case was filed in the United States District Court for The Eastern District of New York on September 8, 2008.

The Civil Rights lawsuit seeks ONE HUNDRED MILLION ($100,000,000.00) DOLLARS in compensatory and punitive damages based upon the Indictment, arrest and prosecution of two innocent men. The lawsuit claims both Mario Sclafani and Braulio Baeza endured extreme mental and emotional suffering, were held up to ridicule and embarrassment, lost their jobs, and were banned from the Racing Industry. Further, legal expenses were incurred.

This lawsuit is another leg to what has become known as the “Fat Jockey Case” that was thrown out of Court in September 2007 by Saratoga County Court Judge Jerry Scarano in the middle of a Jury Trial.

The Federal lawsuit alleges that Sclafani and Baeza were Indicted and prosecuted for purposes of advancing the political, professional and personal ambitions of Defendants Spitzer, Dormin, Lutsky and Borella and for the purpose of establishing compliance with a Federal Deferred Prosecution Agreement entered into in 2003 to advance NYRA’s chances of renewing the lucrative Racing Franchise with New York State, set to expire in December 2007. The Federal lawsuit further alleges that the conspirators manufactured, misrepresented and falsified evidence and omitted material information to the Grand Jury that indicted Sclafani and Baeza with a “reckless disregard for the truth”.

The Federal lawsuit alleges that the prosecution was advanced through the personal contacts of former New York State Police Officers who then worked for NYRA. According to Greenberg, if the New York State Racing and Wagering Board were informed of the allegations, and performed an investigation, Mario Sclafani and Braulio Baeza would never have been charged with any crime. The action also alleges that the five jockeys involved, who received the riding fees from the horse owners, were never charged in any Criminal Indictment and were still being investigated by the New York State Racing and Wagering Board as the criminal trial was progressing. Judge Scarano noted there was no evidence that Sclafani or Baeza received any consideration either monetary or otherwise from the Jockeys or anyone else.


Sclafani and Baeza were arrested and charged on September 21, 2005 with falsely reporting the weight of several prominent jockeys at NYRA’s three Thoroughbred Tracks, Belmont, Aqueduct and Saratoga, thereby defrauding the betting public and the horses’ trainers and owners, according to then Attorney General Eliot Spitzer.

The Indictment in Saratoga County Court charged Sclafani and Baeza with 291 Criminal Counts, including Scheme to Defraud, Conspiracy, Falsifying Business Records, Tampering with Sports Contest and Grand Larceny.

The two were accused of allowing Jockeys, Jose Santos, who rode FunnyCide to victory in the 2003 Kentucky Derby and Preakness, Robby Albarado, Heberto Castillo, Jr., Ariel Smith, and Cornelio Velasquez to ride 67 times at Belmont, Saratoga and Aqueduct from June 23, 2004 to December 15, 2004 even though they were 7 to 15 pounds over the announced weight.

Both men were arrested, arraigned and fired from their jobs. The two were arrested at a time when NYRA was fighting for survival and appeared eager to show law makers who would decide its future that it was cracking down on Race Track operations after several of its mutual clerks were found guilty of tax evasion and money laundering.

On September 4, 2007 the so-called “Fat Jockey” trial opened in Saratoga County Court with Jury selection.

In opening statements, Defense Attorneys Todd D. Greenberg and Paul DerOhannesian told the 12 jurors that the case was based on a faulty investigation and a misunderstanding of the process of weighing jockeys. They said that the State prosecutors and investigators failed to account for some jockeys being weighed with safety-equipment which should not be calculated into the weight. “There is simply no evidence of criminal intent in this case” Greenberg told the Jury. Further, the defense lawyers portrayed their clients as “scape goats”. They said NYRA helped deliver the two clerks to investigators as part of its attempt to show law makers and Federal investigators that it runs a clean operation. “There were hundreds of hours of wire tap, cameras, not one word picked up of any conspiracy, any agreement, any illegality” DerOhannesian told the Jury.

On September 17, 2007, the Judge Throws Case Out in Midst of Trial

On September 17, 2007, in the midst of the Jury Trial, Saratoga County Court Judge Jerry Scarano ruled, pursuant to a Defense Motion, that the case against Mario Sclafani and Braulio Baeza was based on faulty evidence, including that Scale at Saratoga Race Court that was incorrectly calibrated and videos of the scale that were unclear. “From the outset, we believed for the last 2-1/2 years there was not one Iota of criminal evidence against our clients” said Greenberg, who represented Sclafani at the Criminal Trial. “I am still amazed they ever got indicted. They misled the Grand Jury; they misunderstood the rules of racing”, stated Greenberg after the dismissal of the criminal charges.

“NYRA was in a battle with competing groups to retain their franchise and they had to do something to show everyone what a good job they were doing going after people who might have been breaking rules” DerOhannesian said.

Greenberg, who was Lead Counsel in over 150 Felony trials, including 50 homicide related cases, stated that the impact of Judge Scarano’s Ruling is underscored by the fact that the Judge took the case away from the Jury, prior to the prosecution finishing its case, and dismissed the case on a Defense Motion, which is quite rare. “It shows how weak the allegations were in the Indictment against Sclafani and Baeza and highlights the evidence presented to the Grand Jury to have them indicted”. Judge Scarano stated, in dismissing all charges against Sclafani and Baeza, that “I further find no evidence has been presented with regard to any conspiracy or any acts in furtherance of conspiracy committed by either [Sclafani or Baeza].”

During the Criminal litigation, Deanna Buckman, a Grand Juror that sat on the Grand Jury that Indicted the Plaintiffs, wrote to Assistant Deputy General Attorney John Dormin, a Defendant in the civil suit, that she was “extremely saddened by the lack of integrity in our judicial system”. Buckman wrote “it seems that you have “your scape goat” on the line now and nothing else is important.”

The Federal lawsuit filed by Sclafani and Baeza alleges that the Defendants improperly sought and obtained a Superseding Indictment despite the allegations of the Grand Juror and despite the fact that it was known that there was an obvious confusion about Jockeys’ weight in general.

The Criminal Trial testimony revealed that representatives of Safir Rosetti, LLC and NYRA went directly to New York State Police Investigator Borella with their complaints, by-passing the New York State Racing and Wagering Board, the New York State regulating body.

At trial, Thomas Casaregola, Director of Audit and Investigations for the New York State Racing and Wagering Board, the regulatory agency for all the legalized gambling in New York State, testified that the Board was not advised of this investigation and was by-passed by Safir Rosetti, LLC, the investigation firm, which went straight to the Attorney General.

After the dismissal of the Indictment, a Juror wrote to Mr. Greenberg and Mr. DerOhannesian expressing serious doubts about the evidence in the case from the first day of trail. The juror was not surprised that the Judge dismissed the case and wondered why the dismissal took so long.

“The conspiracy to violate the civil rights of Sclafani and Baeza has gone full circle: NYRA offered them as sacrificial lambs to show that it was cleaning house to give NYRA a better chance to obtain the renewal contract, Spitzer commences a prosecution for political purposes, Spitzer becomes Governor and NYRA gets the lucrative contract. This is Government at its worst, at the expense of its citizens.” stated Greenberg.

Addabbo and Greenberg is one of New York’s leading full service law firms practicing in the areas of Criminal Law, Real Estate, and Negligence cases. Todd D. Greenberg, esq. has been lead counsel in over 200 Felony trials including over 50 homicide related cases.