Edition: U.S. / Global

Miller Avoids A Jail Term In Fraud Case

Published: March 28, 1992

Already stripped of his office and the vast power that went with it, former Assembly Speaker Mel Miller was spared prison yesterday for his conviction on fraud charges. But the judge exhorted him not to forget he had acted criminally, "foolish pride and self-deception notwithstanding."

After a tense and emotional hearing in which he had seemed to be leaning toward sending Mr. Miller to prison, Judge Raymond J. Dearie of Federal District Court suspended his three-year sentence to probation, plus 120 days of community service each year. Mr. Miller's former Assembly aide and former law partner, Jay Adolf, received the same sentence.

Judge Dearie stressed that he had "extreme reservations" about his decision not to impose a prison sentence on the former public officials. "What makes this so serious," he said, "is that they are men of prominence, educated men, officers of the court. These events, this crime should not have happened, but it did."

But the judge also acknowledged that the men had forfeited their careers. "In my soul I believe they know what they have traded for these isolated events and actions," he said.

Mr. Miller, the latest in a long line of Brooklyn politicians who rose to the speakership, was also fined $25,000; Mr. Adolf was fined $10,000. In addition, the two men were each charged $400 assessments. They could have received up to five years in prison and a $250,000 fine on each of eight counts.

After the sentence was announced in the Brooklyn courtroom, Mr. Adolf's wife, Maureen, began to cry. Friends and political supporters in the courtroom slapped Mr. Miller on the back and hugged him.

"I don't have anything to say," said the 52-year-old former speaker, who was once known for his garrulousness and quick wit. "I'm now a private citizen. I'm not a public figure. I used to be a public figure, as I'm constantly mindful." His lawyers said they still planned to appeal the conviction.

Norman Adler, a political consultant who had been a senior assistant to Mr. Miller during the beginning of his tenure as speaker, said the former Assembly leader was now a consultant with his firm, which advises candidates and unions and lobbies. He said Mr. Miller would not lobby in Albany.

Mr. Adler attended yesterday's hearing along with several other public figures, among them Joni A. Yoswein, a former aide to Mr. Miller who won his assembly seat and State Senator Martin Markowitz, a Brooklyn Democrat. It was a campaign loan to Mr. Markowitz during a losing race for borough president that first caused prosecutors to look into the Assembly speaker's finances and led to the prosecution.

In Albany, Gov. Mario M. Cuomo said, "I know Mel and I know Jay and I'm glad they're not going to jail." The new Assembly Speaker, Saul Weprin of Queens, who succeeded Mr. Miller to the speakership in December, also rallied to Mr. Miller's side. "Imprisonment would have been an excessive punishment for him and penalized the people of Brooklyn," Mr. Weprin said in a written statement. "Judge Dearie has made a wise decision."

Mr. Miller and Mr. Adolf were convicted in December on eight felony charges resulting from the tangled sale in 1984 and 1985 of cooperative apartments in an aging Flatbush building. Resale of Apartments

The charges -- six of fraud, one of conspiracy, and one of using an assumed name -- involved a scheme to secretly buy and resell eight apartments in the building that netted the two men $200,000 in profits. The jury found that they had defrauded their clients of the profits.

The conviction caused Mr. Miller's automatic expulsion from the Assembly, where he had built a reputation as a powerful, aggressive speaker and a champion of liberal causes. He had represented the 44th Assembly district, stretching through Flatbush, Midwood, Kensington and Park Slope, for 21 years. Mr. Adolf had been his executive counsel and his law partner. Both men are being disbarred.

Several legal experts said yesterday that they believed Judge Dearie's sentence was just, and they distinguished the case from the other prominent New York corruption trials in recent years that concerned the abuse of office.

"This is Miller's private law practice that we're talking about, not his public work, and there's no allegation of violation of public trust," said Stephen Gillers, professor of legal ethics at New York University Law School. Professor Gillers added, "Ordinarily, lawyers who did what these lawyers were alleged to have done are disciplined and sued for damages." He said the prosecution seemed to push the edge of the use of criminal law. 'Punishment Enough'

Thomas P. Puccio, a former Federal prosecutor who had defended former Bronx Democratic leader Stanley Friedman during New York's municipal corruption trials, said Mr. Miller's "whole career went down the drain. The judge may feel that's punishment enough."

The prosecutor, Assistant United States Attorney Matthew E. Fishbein, said that he was not surprised by the sentence and that he was gratified that the judge had pointed to the "seriousness of the case."

Judge Dearie, in a statement he acknowledged as unusual, opened the hearing by speaking extensively about his concern that the defendants did not seem to acknowledge that they had done something wrong and that there explanations had been "implausible" and "arrogant."

"I didn't preside over a trial involving ethical breaches," he said. "There's nothing about the attorney-client relationship that provides safe harbor for fraud." At another point, Judge Dearie said, "There are real victims in this case and with all due respect to Mr. Adolf and Mr. Miller, they are not among them."

He called a short recess, leaving the defendants looking strained and shaken. Mr. Miller consulted with his lawyers and with his two children who are also lawyers.

After the recess, Mr. Miller stood facing the judge, and apologized for any arrogance. "I was a fool not to understand what was rightly a client's," he said.