A prosecutorial screw-up has handed embattled state Sen. Malcolm Smith a mistrial — and a chance at re-election before he’d face retrial — on charges he tried to bribe his way onto the Republican line for mayor.
A federal judge on Tuesday granted a mistrial motion for Smith in the $200,000 bribery case, as well as a top Queens Republican operative, after not enough jurors were willing to serve more than a month longer than expected to resolve issues with recently disclosed taped calls by the government’s star witness.
Smith (D-Queens) and co-defendant, former Queens Vice Chairman Vincent Tabone, will now have a new trial on Jan. 5. Smith – a beleaguered but powerful Democrat — faces a primary challenge in September.
But another co-defendant, former Councilman Dan Halloran (D-Queens), was allowed to move ahead with his trial after his lawyer, Vinoo Varghese, argued that Halloran was “teetering on bankruptcy” and could not afford another courtroom go-round.
“I wanted my day in court,” Halloran said afterwards, while boasting he hopes to someday seek elected office again.
The trial – which is now expected to conclude by mid-July — would have lasted much longer if Smith and Tabone also remained on trial.
White Plains Judge Kenneth Karas had polled the 12 sitting jurors and three alternates to see if they could stay on the complicated case. He said the minimum needed – a total of 12 — were willing to remain on only if it ended by July 18. This led to him allowing Halloran’s trial to proceed while declaring mistrials for Tabone and Smith.
“I don’t want to retry this case,” the judge said. “Retrying this case is like putting on a wet bathing suit.”
Smith, Halloran and Tabone are accused of trying to pull off a failed bribery scheme aimed at getting Smith — one of the state’s top Democrats — the Republican line in last year’s mayoral election.
Halloran’s trial will continue June 25 after his defense lawyers digest more than 92 hours of newly released audio tapes – including 28 hours in Yiddish — from prosecutors. The tapes were secretly recorded by Moses Stern, a crooked Rockland County developer-turned federal witness to try to dodge jail time.
The trial is in its third week, and jurors had been promised earlier to expect it to wrap up this week. That all changed last week when a witness disclosed the existence of the tapes.
Smith, the feds say, turned to Stern and an undercover agent for money and help pulling off the scheme. The senator, in turn, promised them $500,000 in transportation funds for a project in Spring Valley, NY.
The government had contended it didn’t share the recordings on the grounds they weren’t relevant to the case, but defense lawyers argued the case might not have even made it to trial if they’d had all of the recordings early on to review and prepare a better defense.
Smith faces a stiff Democratic primary in September from Queens Deputy Borough President Leroy Comrie, the former city councilman from the same Southeast Queens area.
“I’m still running. It’s full steam ahead,” Comrie told The Post moments after the mistrial was declared.
Comrie is backed by the Queens Democratic organization, the major labor unions and the Working Families Party. He says Smith can no longer effectively represent the district given his legal and political controversies.
But Smith may turn the mistrial to his political benefit, claiming he was unfairly targeted.
There are also two other, lesser known candidates in the race who can affect the outcome.
“One on one, Leroy Comrie crushes him. The only question is whether Malcolm survives because of split opposition,” a Queens Democratic Party insider said.
Both Smith and his lawyer, Gerald Shargel, declined comment about Smith’s political future but have previously said the senator plans to seek re-election.
Shargel said the mistrial motion was “born of necessity” and that the newly released tapes “support what we’ve been saying all along — that there was entrapment.”
Varghese, however, said Halloran didn’t want to await “another seven months to clear his name.”
“We believe we have the best shot here with this jury to clear his name,” he said.
Halloran is accused of pocketing $20,500 in cash bribes for acting as an intermediary who set up the cross-party negotiations to get Smith the Republican line in the 2013 mayor’s race.
The feds say Smith also plotted with Stern for another $40,000 in cash bribes to be paid to Tabone and former Bronx GOP Chairman Joseph Savino.
Tabone allegedly received $25,000, and Savino copped a plea in November to accepting a $15,000 bribe while alleging that Halloran instigated the scheme.
Halloran is also facing charges of allegedly pocketing $18,300 in cash bribes and $6,500 in straw-donor campaign donations for agreeing to steer $80,000 of council discretionary funding for his district to a company he believed was controlled by those who paid him the bribes.
Both Smith and Halloran face up to 45 years behind bars if convicted, while Tabone faces 25 years in prison.
— Additional reporting by Elizabeth Hagen