Gov. David Paterson could face a criminal charge over his testimony surrounding tickets he secured last year from the Yankees for the opening game of the World Series.
The state's former chief judge, acting as a special counsel, called Paterson's testimony "inaccurate and misleading" and has asked a district attorney to consider a perjury investigation.
That doesn't necessarily mean that Paterson, who rose to office in 2008 when Gov. Eliot Spitzer resigned amid a prostitution scandal, will ever be charged, though. Former prosecutors say perjury is a notoriously difficult charge to prove, if it's pursued at all.
"If everyone in that Capitol who lies is going to be charged with perjury, the district attorney better hire a lot more prosecutors," said David Grandeau, former head of the state's lobbying commission and a widely respected investigator of misconduct in a capital that's earned a national reputation for it.
In a report Thursday, former state Chief Judge Judith Kaye noted four of five of Paterson's tickets to the World Series opening game between the Yankees and the Philadelphia Phillies were paid for shortly afterward, following a press inquiry from the New York Post newspaper.
Kaye said there's a question whether the Democratic governor gave "intentionally false testimony" to the state Commission on Public Integrity about having written an $850 check in advance for two tickets.
However, Kaye said the perjury issue was "clouded" by the way Paterson's testimony was given, with the entries read aloud to the legally blind governor. If Paterson had personally examined the check used to pay for two tickets, which was not in his handwriting, that "would have been obvious to the governor," she said.
Paterson's private attorney, Theodore Wells Jr., said Paterson didn't lie, and he noted Kaye's report doesn't recommend bringing charges or conclude Paterson intended to give false testimony.
"We are therefore hopeful that (Albany County District Attorney David) Soares will ultimately conclude that no criminal charges are warranted," he said.
Paterson eventually paid for the tickets, but the question is if he had always planned to and if testimony about the tickets was truthful.
Former Albany County prosecutor Paul DerOhannesian II, a defense attorney not involved in the Paterson case, called perjury "a tough charge." But he added that "certainly politicians and celebrities are more susceptible to these charges."
He noted that a jury was deadlocked on all but one of 23 charges in the corruption case against former Illinois Gov. Rod Blagojevich, a charge of lying to the FBI. But he also said the Albany County district attorney, a Democrat, will have great discretion to decide if there's a basis for pursuing perjury against the governor, whose term ends Dec. 31, and if it's in the public's best interest.
In Paterson's case, DerOhannesian said "there certainly is a basis ... many individuals get charged with less."
Grandeau said getting the baseball tickets probably didn't violate state law because Paterson was acting as part of his official duties. But he said the stories that followed from the governor's chamber are most troubling.
"So if the governor did nothing wrong, deal with the public fallout of the governor taking free Yankees tickets," Grandeau said.
He noted, however, that a perjury case would be complicated because the case involves what check the legally blind governor was shown, what he had in his hand and what he had filled out.
Publicly handling the fallout was Paterson's communications director, Peter Kauffmann, who resigned shortly after, saying he could not "in good conscience" stay. He didn't respond to a request for comment Thursday.
The state Commission on Public Integrity staff recommended last week that Paterson be fined more than $90,000 in civil penalties for soliciting and accepting the tickets in violation of ethics law.
The Albany DA is separately reviewing the possible criminal case. Spokeswoman Heather Orth had no comment.
Paterson abandoned his bid for a full term shortly after this investigation began, saying he couldn't let the probe during a campaign distract him from the state's fiscal crisis. He also was and remains mired in low poll ratings.
This is just one of the scandals facing Paterson in a rocky term since he ascended to the office in March 2008. Paterson has escaped calls for his resignation over rumors of sex and drug escapades that were never proved and over his role and that of state police in a domestic violence case involving one of his longtime top aides.
Shortly after Paterson took office, he made a public airing of past marital infidelities when he and his wife were separated and of some drug use in his youth. He said he made the disclosures to avoid having his past used against him as governor.
Paterson, 56, spent more than 20 years in the state Senate as one of its most respected members even as he led the Democrats from minority status to the cusp of winning the majority, which Democrats did in the 2008 elections.
Kaye's investigators also found "two apparently backdated checks and an apparently backdated cover letter" sent to the Yankees to pay for tickets but concluded that does not warrant consideration of criminal charges. The evidence indicated the letter and checks were written by Paterson aide and friend David Johnson, who declined to cooperate with investigators.
Paterson had told commission lawyers that he had staff call to request tickets and did not pay for his own.
"This was the first game of the World Series," Paterson said. "It's always a national event, like the Academy Awards or, you know, governor's state address or something like that."