The trial of two brothers accused of trying to claim $5 million in winnings off a stolen lottery ticket started Monday at 1:00 pm in Onondaga County Court, in Syracuse, New York.
(See Non-jury trial expected next week for lottery-thieving brothers, Lottery Post, Apr. 19, 2013.)
Andy Ashkar, 34, is accused of stealing a winning ticket from customer Robert Miles at The Green Ale Market on East Fayette Street in Syracuse on Oct. 27, 2006. Prosecutors say Ashkar told Miles the "Extravaganza" ticket was worth $5,000 and gave him $4,000. He is accused of keeping $1,000 for the store, which his father owns. He is charged with conspiracy and criminal possession of stolen property.
Ashkar's brother, Nayel, 36, is accused of conspiring to help his brother claim the winnings six years later. The brothers are expected to waive their right to a jury when the courtroom opens at 1 p.m. Then, Judge Joseph Fahey will decide the facts of the case during the trial.
Assistant District Attorney Beth Van Doren is prosecuting the case. Defense attorney Robert Durr is representing Andy Ashkar and Robert Tisdell is representing Nayel Ashkar.
The brother's father, Nayef Ashkar, who is also charged with conspiracy, has a separate trial date scheduled in September.
Following is a series of updates on the progress of the trial.
Monday, 2:20 p.m. Witness testimony is under way during the trial of Andy and Nayel Ashkar, two brothers accused of trying to claim $5 million from a stolen lottery ticket. On the stand now is Joan China, who is a clerk in the prize payment unit of the state lottery office.
The brothers are wearing matching black suits, with about a dozen friends and family watching in the courtroom. The brothers' father, Nayef, is present.
In Beth Van Doren's possession is what has been labeled as "exhibit number one," the disputed "Extravaganza" scratch-off lottery ticket worth $5 million.
After the courtroom opened, Judge Joseph Fahey handed waiver forms to the defendants, who have opted to have a bench trial rather than a jury trial. Prosecutor Beth Van Doren then made her opening statement.
"I want to make it clear from the onset, what this case is not about," she said. "We are not here today because the defendants waited over five years to cash a winning $5 million ticket. Waiting that amount of time is the legal right....Of the rightful owner."
Van Doren said the case was about the "falsehoods and deceit" that surrounded the brothers' claim. She said those suspicions led to an investigation by state lottery officials, a "planted" press release and the eventual finding of Robert Miles, whom the prosecution contends is the rightful ticket owner.
Defense attorney Robert Durr, who is representing Andy Ashkar, said in his opening that there are "major inconsistencies" from prosecutorial witnesses as to "what exactly occurred that day. What time it occurred."
Defense attorney Robert Tisdell, who represents Nayel, said the people had no evidence his client committed any crime.
"If in fact, one accepts their (the prosecution's) fairy tale...where did you hear anything to prove that Nayel—if Andy is to have done anything—what proof do they have that Nayel knew anything about it? There's no statement from Nayel Ashkar, that he was in the store, or saw anything. That he ever had a conversation with Robert Miles.
"Bottom line: where's the proof?"
Monday, 2:45 p.m. Nayel Ashkar asked if he could have a reduced prize amount in exchange for anonymity when he and and his brother tried to claim a winning scratch-off ticket worth $5 million in March of 2012, a principal clerk in the prize payment unit of the state lottery office said today in court.
Joan China testified that her encounter with the brothers in March was "off."
"I had never seen claimants come in before that weren't happy," she testified. "Usually they're excited, jumping up and down, crying. It's a life changing event. I did not get that from them at all."
Monday, 3:35 p.m. Richard Dettor, an accountant, was the second witness called to the stand.
He said he met with Andy Ashkar in 2009 to discuss "what the taxes would be" on $5 million in lottery winnings that Ashkar said he had won but hadn't cashed in. He met later with Nayel Ashkar, and they discussed how to split the ticket, he testified.
"I asked him why he didn't cash it in," he testified.
Prosecutor Beth Van Doren asked if Dettor advised Andy Ashkar that he was losing money by keeping the ticket in a safe deposit box. Dettor said interest rates were low, so he didn't know if Ashkar was losing much money by holding onto the ticket.
Dettor said Andy Ashkar told him he waited to cash the ticket because was worried for his safety, the safety of his family, and possible backlash regarding the convenience store his father owns where the ticket was purchased.
Monday, 4:20 p.m. Testimony from an attorney who worked with the Ashkar brothers in their attempt to claim $5 million from the state lottery office was halted at 4:10 p.m. and will resume in the morning.
Lawyer Robert O'Leary, who sent sworn statements to lottery officials giving reasons why Andy Ashkar waited six years to cash a winning scratch-off ticket, was the third witness on the stand today.
He said Andy Ashkar was worried that the convenience store his parents owned would become a "target for robbery" if people learned he hit the jackpot. He said the store was in a "high crime area" and he did not want to "jeopardize the safety of his family members."
He also said he waited to cash the ticket because his wife had recently immigrated to the United States from Israel, and he "needed to know the marriage was based upon a strong foundation."
Ashkar told O'Leary he had read about people who had won the lottery only to have their lives fall apart and said he was "not eager to complicate" his own. He said he considered the ticket "money in the bank," and kept it in a safety deposit box until it was closer to the expiration date to make his claim.
Tuesday, 10:10 a.m. The trial resumed this morning shortly after 9 a.m. Andy Ashkar, dressed in a black suit, was seated next to his brother, Nayel Ashkar, in gray. The brothers' father and a few other family members were watching from the back of the courtroom.
Lawyer Robert O'Leary was called back on the stand first for cross-examination by the defense. He was asked about his representation of the brothers when they tried to claim winnings from the state lottery office in 2012.
O'Leary said he prepared several affidavits on behalf of the brothers and then submitted them to lottery officials to satisfy questions they had after launching an investigation into the brothers' claim.
Defense attorney Robert Durr, who is representing Andy Ashkar, asked O'Leary if he had an ethical obligation to not knowingly prepare false documents. He said he did.
"I explained to the Ashkars they were putting certain balls into motion with our proceedings," he said. "They assured me on more than one occasion what they told me was the truth."
Next on the stand was Kevin Vanderwal, who is a senior attorney with the state lottery office.
Tuesday, 10:30 a.m. A senior attorney with the state lottery said he found it unusual when two brothers walked into his office in Schenectady saying they wanted to present a $5 million claim to him.
"It is unusual because as an attorney, nobody presents a claim to me," said Kent Vanderwal, testifying this morning during the trial of Andy and Nayel Ashkar. "Usually, they present them at a customer service center. They had no appointment...Also, there was a blizzard that morning."
Vanderwal said he had spoken with an attorney representing the claimants in February of 2012, a month before they came to his office.
"They were very concerned about remaining anonymous, avoiding a press conference," he said.
He also said he received a call from one of the claimants, who asked if he could take less prize money in order to skip the press conference. Vanderwal said claimants frequently ask if they can skip the news conference, but the lottery requires one of nearly all jackpot winners, he said. The lottery holds press conferences to ensure players of the integrity of the game and as a last step to verify the veracity of claims, he said.
Asked by prosecutor Beth Van Doren if the investigation into the Ashkars' claim was heightened because a family member owned the store where the winning scratch-off ticket was purchased, Vanderwal said yes.
"The vast majority of our retailers are very honest, trustworthy people," he said.
He added, though, that people have general fears about presenting winning tickets to retailers. He said gamers worry retailers may see the winning ticket, call it a loser and later claim the prize for themselves.
In essence, that is what Andy Ashkar is accused of doing to Robert Miles in 2006.
Judge Joseph Fahey has called a recess in order to go through his regular calendar.
Tuesday, 12:10 p.m. Defense attorney Robert Durr asked lottery lawyer Kent Vanderwal if he had ever heard about another persons's claim to a winning $5 million lottery ticket before it was brought into his office in March of 2012 by Andy and Nayel Ashkar.
He said that he hadn't.
Vanderwal said he found the brothers' claim suspicious because their father owns the convenience store where it was sold and because Nayel Ashkar was adamant about avoiding a press conference, even asking if he could accept a lesser amount in exchange for anonymity.
"You don't feel concern for family safety is cause to be emotional or adamant?" Durr asked.
"The concern itself was not suspicious," said Vanderwal. "I ...didn't feel I was being told the whole truth."
Asked if the lottery had concluded that the relationship between Andy Ashkar and his father, Nayef, was improper in regards to the claim, Vanderwal said his office had not.
"We have not come to any conclusion or made any determination regarding this prize claim," he said.
Judge Joseph Fahey ordered a break for lunch around 12:10 p.m., and the courtroom will re-open at 1:15 p.m.
Tuesday, 2:30 p.m. For nearly an hour, defense attorney Robert Tisdell hammered lottery lawyer Kent Vanderwal over why the lottery didn't investigate Robert Miles after he claimed that a $5 million winning scratch-off lottery ticket was stolen from him by Andy Ashkar.
Tisdell is representing Nayel Ashkar, who is charged with conspiracy for allegedly helping his brother scheme to claim the winnings.
Miles came forward with his claim after the lottery sent out a news release in 2012 announcing Andy and Nayel Ashkar as jackpot lottery winners.
Tisdell said the lottery sent out a fake news release to "smoke out" another claimant because they were suspicious of the Ashkars.
Vanderwal bristled against Tisdell's characterizations of the news release, and most of his other questions. Tisdell asked Vanderwal several times to reduce his answers to a "yes or no" format, but the two continued to talk over one another until cross-examination ended around 2:30 p.m.
Judge Joseph Fahey called for a quick recess before the next witness takes the stand.
Tuesday, 3:30 p.m. An investigator with the state lottery testified that Andy Ashkar couldn't remember the day, month, season or year when he allegedly won $5 million from a scratch-off lottery ticket at his father's convenience store.
The investigator, Jay Hemlock, said he questioned both brothers on March 1, 2012, after they came to the lottery office in Schenectady to claim a prize.
He said it wasn't usual procedure to question winners on the spot, but he had received warning from lottery counsel that suspicious claimants were expected to come forward before the ticket expired.
"I spent a good amount of time trying to elicit more specific information-- the time of day the ticket was allegedly purchased and scratched," said Hemlock. "I asked if it was cold out, hot out, if he had a jacket on, was it raining, snowing. I pretty much got 'I don't know' as the answer."
Hemlock said lottery records showed that the "Extravanganza" book in question was activated at The Green Ale Market in Syracuse on Oct. 26, 2006. He said a $5 million winner was validated at the store the following day.
Prosecutor Beth Van Doren asked Hemlock if the lottery decided, after his investigation, to award the $5 million to the Ashkars.
"It was more of a round table discussion," said Hemlock. "It was a mutual decision that there were enough things that we were suspicious of that we would not be paying the ticket promptly, if at all."
After Van Doren's questions, Judge Joseph Fahey recessed court until tomorrow morning. Hemlock is expected back first thing for cross-examination by the defense.