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Appeals judge blocks prison date for New York politician

FILE - In this July 27, 2018 file photo, former New York Assembly Speaker Sheldon Silver, center, leaves federal court in New York after his sentencing. Federal appeals court judge Peter Hall said Tuesday, Sept. 25 that Silver might not have to report to prison until a judicial panel decides if he can remain free on bail while he appeals. Silver was sentenced to seven years in prison after he was convicted earlier this year of accepting nearly $4 million in return for legislative favors. (AP Photo/Mary Altaffer, File)

NEW YORK (AP) — The former leader of New York’s Assembly can stay out of prison until a judicial panel decides whether he can remain free on bail while he appeals his sentence for public corruption, a federal appeals judge said Tuesday.

Sheldon Silver was supposed to report to prison Oct. 5, but Judge Peter W. Hall of the 2nd U.S. Circuit Court of Appeals said he can wait to begin his seven-year prison term until after the judicial panel in Manhattan decides the issue. That process usually take a few weeks.

Hall issued a one-page order after lawyers for Silver submitted written arguments on Friday, saying the Democrat should remain free on bail because his second trial earlier this year raises some of the same issues as a 2015 trial whose outcome was reversed on appeal.

Silver, 74, was convicted in May of illegally collecting nearly $4 million in fees from a cancer researcher and real estate developers who benefited from his clout in state government. He earned another $1 million investing that money.

Hall said the appeals panel can also decide whether to grant Silver’s request to delay paying a $1.75 million fine.

In their court papers, Silver’s lawyers said their client is entitled to be free during appeal because his conviction raises substantial issues of law likely to result in reversal or a new trial.

His first conviction on bribery charges was reversed by the 2nd Circuit, which cited the U.S. Supreme Court ruling that reversed the public corruption conviction of former Virginia Republican Gov. Bob McDonnell.

“On retrial, the district court fell into the same error,” Silver’s lawyers wrote.

They said the trial judge refused to instruct the jury that an “agreement” to accept things of value in return for legislative favors was required for a conviction.

They said the judge “compounded this error by instructing the jury that it could convict without finding that Mr. Silver agreed to perform any particular official act.”

Silver’s lawyers said jurors were misled to think it was enough for unspecified official acts to be carried out as opportunities arose.

“The district court’s errors mis-drew the line between unlawful bribes and lawful attempts to cultivate generalized goodwill, creating an unacceptable risk that the jury convicted Mr. Silver ‘for conduct that is not unlawful,'” the lawyers wrote.

Prosecutors have not yet responded to the arguments in writing. They declined comment Tuesday through a spokesman.

Silver served as Assembly speaker for 21 years. He was first elected in 1976.

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