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Judge won't move trial for fraud case to Brooklyn

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Phil Kenner (seen here in an older photo) is accused of bilking investors out of millions of dollars.Handout

Phil Kenner (seen here in an older photo) is accused of bilking investors out of millions of dollars.

CENTRAL ISLIP — A federal judge denied a request from an attorney representing a former race car driver accused of stealing millions of dollars from NHL players and other investors to move his trial to Brooklyn because a story that appeared in the Sunday Daily News may have prejudiced the jury pool in Suffolk County.

Attorney Robert LaRusso objected to quotes in the story from John Kaiser, a former Suffolk County police officer who claims LaRusso’s client and former Playboy driver Tommy Constantine and his co-defendant Phil Kenner bilked him and his family out of hundreds of thousands of dollars. LaRusso also complained that the Daily News reported that Constantine had changed his name from Tommy Hormovitis after pleading guilty to drug charges in the early 1990s in Illinois.

U.S. District Judge Joseph Bianco denied the motion shortly before jury selection began Monday at the Alphonse M. D’Amato United States Courthouse. Bianco said he would ask potential jurors if they had read the article.

“I think anybody who has read this article should not be on the jury,” Bianco said.

The story reported that Kaiser, who will likely be called as a prosecution witness, became suspicious of Kenner and Constantine after reading stories about the alleged fraudsters’ legal battles with the NHL players in the Daily News. Kaiser told the Daily News in 2013 that he wanted to bring the alleged con men to justice because he believed they had not only scammed him, but they had also ripped off the family members and friends he had convinced to invest with Kenner and Constantine.

LaRusso argued that potential jurors could have been biased by the story out of respect and support for Suffolk County police.

“We respectfully submit that the impact of this Daily News article, written on the eve of jury selection, raises the substantial likelihood that the jury pool has been tainted by the slanted presentation of the charges and, as important, by the inclusion of inflammatory and prejudicial information,” LaRusso wrote in a letter he sent to the judge Sunday.

LaRusso also complained that the Sunday News story reported that his client had legally changed his last name from Hormovitis after he pleaded guilty to drug charges in the early 1990s. LaRusso said the name change was irrelevant to the case and the guilty plea, entered in an Illinois court, was not admissible in this case.

Kenner faces nine felony charges, including wire fraud, conspiracy and money laundering. Constantine was indicted on seven counts. Both men have pleaded not guilty.

LaRusso also said he was concerned about the relationship between Daily News reporters and Tom Harvey, a New York attorney who once represented Ken Jowdy, a golf resort developer who is also likely to be called as a witness. LaRusso said that the newspaper published a disclaimer with Sunday’s story that pointed out that Harvey’s legal analysis has appeared in the Daily News, and that he is no longer involved in the Kenner and Constantine case.

Meanwhile, Bianco yet again rejected LaRusso’s request to try Constantine separately from Kenner. In papers filed with the court last week, LaRusso said Kenner and Constantine had turned on each other, and that they would blame each other for some of the fraud alleged in a superseding indictment made public last week.

The government revealed this past week that Kenner, who has been jailed in New York since his 2013 arrest, recently became the subject of a still-ongoing obstruction of justice probe based partly on a secretly recorded jailhouse conversation.

Bianco, prosecutors and defense attorneys said the case should take about five weeks.

The Daily News began reporting on the matter in 2009, after 19 professional hockey players sued Jowdy, Kenner’s former partner and the developer of a world-class golf resort in Cabo San Lucas, airing the bizarre claim that $ 25 million they’d entrusted to Jowdy — through Kenner — had been squandered on porn stars and escorts.

It soon emerged that Kenner was behind that lawsuit, which was ultimately withdrawn. Jowdy, meanwhile, completed work on the resort — called Diamante Cabo San Lucas, featuring an adjacent course designed by Tiger Woods — despite threats Jowdy says made him fearful for his life.

According to the indictment, Kenner and Constantine told the players their money was being invested in the golf resorts, a prepaid credit card company called Eufora, and something called the “Global Settlement Fund” — a purported legal defense fund designed in large part for the attacks on Jowdy.

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