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Federal court upholds Monserrate expulsion

A federal appeals court on Friday denied former state Sen. Hiram Monserrate’s request to restore his position in the state Legislature and cancel Tuesday’s election for the 13th Senate District.

The panel of three judges made the decision following a hearing Friday at the Second Circuit Court of Appeals in Manhattan.

“I’m disappointed,” said Monserrate’s attorney, Normal Siegel, who plans to challenge the decision.

Siegel argued in court that the former senator should be allowed to return to his former seat representing western Queens and asked judges to call off the election between his client and state Assemblyman Jose Peralta (D-Jackson Heights).

Monserrate was expelled from the Senate based on an incident involving his girlfriend Karla Giraldo, whose face was slashed with a broken glass during an argument she had with him in his Jackson Heights apartment in December 2008.

He had represented the 13th Senate District, which covers Corona, East Elmhurst, Elmhurst and Jackson Heights.

Siegel said the “crux of this case is not solely about Monserrate,” but rather about the authority of the state Legislature to expel an elected official based on a misdemeanor conviction. He argued the expulsion was unconstitutional and said state law sets no standards for removing a state senator because of a misdemeanor. A state Supreme Court judge in Queens decided not to find him guilty of a felony.

“We have now a Legislature that can willy-nilly decide to expel someone,” Siegel said. “… If Monserrate was convicted of a felony, that would be automatic expulsion, but we don’t have the situation here.”

Barbara Underwood, the solicitor general in the state Division of Appeals and Opinions, said Monserrate was justly expelled “because of misconduct well within the heartland of unfitness.”

The attorney from state Attorney General Andrew Cuomo’s office further argued that New York law states an elected official can be removed should they violate their oath of office, which she said Monserrate did.

Justice Gerard Lynch questioned whether Monserrate would once again be expelled if he won the special election. About 60 percent of residents in the 13th Senate District said they would vote for Peralta, according to a recently released Siena College poll.

“Because they found him unfit does not mean they would find him unfit again,” Underwood said.

Reach reporter Anna Gustafson by e-mail at or by phone at 718-260-4574.

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