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Perez's Lawyer Files To Dismiss Bribery Charges

EDMUND H. MAHONY and DAVE ALTIMARI

February 20, 2009

Mayor Eddie Perez officially fired back at prosecutors Thursday, using portions of secret grand jury testimony to pick apart the state's bribery case, in particular the central allegation that he intervened illegally to protect a $5.3 million city contract held by a contractor who had renovated the mayor's home.

In a motion to dismiss filed in Superior Court, Perez defense lawyer Hubert J. Santos says that testimony by three grand jury witnesses contradicts the evidence for the crimes with which Perez was charged on Jan. 28 — bribe receiving, fabricating evidence and conspiracy to fabricate evidence. Perez has pleaded not guilty.

Chief State's Attorney Kevin Kane, whose office is prosecuting Perez, declined to comment. Santos would not elaborate on his motion. Both the prosecution and defense have approval to release selected portions of sealed grand jury testimony.

One of the most significant elements of the charges against Perez is an allegation that he personally intervened to block an effort by the city public works department to revoke the $5.3 million contract awarded to Carlos Costa for improvements to Park Street. The project was behind schedule and over budget. State prosecutors say Perez intervened because Costa had done free renovations for the mayor.

Santos reproduced segments of grand jury testimony by two city officials that the defense says shows Perez had only limited involvement in discussions leading to a decision to leave the Park Street contract with Costa. Those officials are Charles J. Crocini, director of capital projects, and Bhupen Patel, former public works director.

Santos says in his motion that Perez was aware that there was a problem with Costa's performance on the Park Street project and that there was movement in the city public works department to call Costa's performance bond.

Perez asked Crocini to examine the bonding issue, Santos said in the motion, and Crocini sent the bonding company a letter "softening the city's position on calling the bond."

During an appearance before the grand jury, Santos said, Crocini was asked, "And what was Mayor Perez's opinion on the subject?"

"I don't know that he had one," Santos said Crocini answered. "I didn't discuss it with him, unless he discussed it with somebody else. I did this under my authority so ..."

At that point, Santos said in the motion, Crocini's answer was cut off by prosecutors.

Nonetheless, Santos claims in his motion that Crocini's testimony is ignored in the Perez arrest warrant affidavit, which states: "Testimony revealed that Perez then ordered his Director of Capital Projects, Charles J. Crocini, to pull back the calling of the bond. Crocini advised that he would take care of it. ..."

Elsewhere in the motion to dismiss, Santos argues that grand jury testimony by both Crocini and Patel shows that the city allowed Costa to keep the Park Street contract because the city would have incurred unacceptable expenses and experienced delays had it done otherwise.

Santos said Patel testified as follows:

"Then we met again, with consultant, ourselves and Crocini, we looked at it, and we were told what really cost us if we throw him out. And we did the calculations, consulting, basically by throwing him out at that point, what it will take to finish the job, if we go out to bid, time, etc. And it was roughly about damages of $900,000 or a million dollars. Plus time which it takes to go out to bid."

Santos, in his motion, also reproduced grand jury testimony by Costa in an effort to undercut the prosecution's contention that work Costa did on Perez's house amounted to a bribe.

Prosecutors say Costa did as much as $40,000 in work on the mayor's house in 2005, but was not paid by Perez until July 2007 — after the mayor learned the work was the subject of an investigation. Prosecutors said that Perez obtained a $25,000 home equity loan to pay Costa $20,000 for the work the same day he learned of the investigation.

The Costa testimony appears contradictory on its face. But Santos argues the testimony shows Perez intended, eventually, to pay for the work. While payment for the work was pending, Santos argues that Costa felt he would have valuable access to Perez.

"Giving something of value to a public official for 'access' is not a corrupt agreement," Santos wrote in the motion. If it were, Santos said, campaign contributions and a variety of political activities would be illegal.

During one point in his grand jury questioning, Costa responded as follows:

Q: OK. Did he indicate to you at that time whether or not he planned to pay the bill?

A: I remember him telling me that he had no money to pay the bill and he had to secure a loan to pay the bill.

Q: OK. Did he say anything to you at that time about whether or not he was going to pay it?

A: He told me I'll work on it. He didn't specify to me any particular date. He had told me that he had to get a mortgage or a loan prior so.

Q: He told you he wanted to pay.

A: Yeah.

At another point, Costa was asked a different set of questions:

Q: And in return for doing the work at his home for no charge, what did you expect?

A: Access.

Q: And can you elaborate on that, access to who?

A: To Mayor Perez. I mean I'd expect if I had a problem I could call him or I could see him and I could try to request his aid in resolving the problem.