"It would not have helped to make a motion. Nobody forgot to check off a box," Engoron said.
Engoron said the punishment being sought by the state is an "equitable" remedy, as opposed to a "legal" remedy.
A legal remedy is an award for damages, which can be determined by a jury. Earlier this year, a federal jury awarded the writer E. Jean Carroll
$5 million in damages after finding Trump liable for sexual abuse and defamation. The damages were not an amount Trump took from her, but rather a sum the jury concluded might remedy the emotional, physical and reputational harm Trump had caused.
In the ongoing New York fraud case, the state is seeking $250 million in disgorgement, a kind of equitable remedy that is a clawback of ill-gotten gains — the amount of benefit that the state says Trump and the co-defendants personally received from alleged fraud. Authorities cannot ask a jury to make that kind of calculation.
"That leaves it up to the judge," Engoron said.