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by Jay Gallagher

Thursday, February 11, 2010

Monserrate takes fight to court

A federal judge in Manhattan today refused to issue a stay blocking the removal of Hiram Monserrate of Queens from the state Senate, but set a hearing for next Thursday on the issue.

Monserrate, whom the Senate voted Tuesday night to remove from office in the wake of his conviction on misdemeanor assault charges, is challenging the decision in court, saying that only voters have the power to remove him.

In court papers filed today, Monserrate also asked U.S. District Court Judge William Pauley to bar a special election Gov. David Paterson has set for March 16 to replace him. He said he was denied due process.

"The office is up and running. I will be stopping in today to speak with the staff," Monserrate said after the court filing, according to the Associated Press. "I will continue to serve."

Monserrate said he won't be on the ballot for the special election, if there is one, but is expected to run for another two-year term in November. Most Democratic leaders in Queens have said they support Democratic Assemblyman Jose Peralta to replace Monserrate.

Last fall Monserrate was convicted of a misdemeanor assault charge after being caught on videotape dragging his girlfriend, Karla Giraldo, through the lobby of his apartment building in December of 2008.

She was bleeding from facial cuts that eventually required 40 stitches to close. The couple said Monserrate accidentally cut her when he tripped while bringing her a glass of water. He was acquitted of four felony accounts that arose from the incident.

The Senate "did not have the constitutional or legal authority to expel Sen. Monserrate from office against the will of the people and even if they did have the power to expel him, the 'ad hoc' nature of how they did so was in violation of his due process rights," his lawyers argued in papers submitted to the court.

The vote to expel Monserrate, which passed 53-8, came after a probe by a special nine-member bi-partisan Senate panel. Monserrate refused to appear before the committee, which recommended that he be either censured or expelled.

Monserrate's ouster leaves the Democrats with a tenuous 31-30 advantage over Republicans. Thirty-two votes are needed to approve legislation.


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