Auer v. Smith

• Decision Date: 30 October 1980
• Citation: 432 N.Y.S.2d 926,77 A.D.2d 172
• Parties: , 1981-1 Trade Cases P 63,900 In the Matter of the Application of Martin S. AUER and John Mulroy, Petitioners, v. Lyman SMITH, Justice of the Supreme Court of the State of New York and Peter D. Andreoli, Special Deputy Attorney General of the State of New York, Respondents.
• Court: New York Supreme Court — Appellate Division

Page 926

432 N.Y.S.2d 926

77 A.D.2d 172, 1981-1 Trade Cases P 63,900

In the Matter of the Application of Martin S. AUER and John Mulroy, Petitioners, v. Lyman SMITH, Justice of the Supreme Court of the State of New York and Peter D. Andreoli, Special Deputy Attorney General of the State of New York, Respondents.

Supreme Court, Appellate Division, Fourth Department.

Oct. 30, 1980.

Edward F. Gerber, Syracuse, for petitioner Auer

Anthony Rivizzigno, Syracuse, for petitioner Mulroy (Edward Gerber, Syracuse, of counsel).

Robert Abrams, Atty. Gen., Albany, for respondent Hon. Lyman Smith (William Goldman, Auburn, of counsel).

Peter D. Andreoli, Syracuse, pro se (Edward Feinberg, Syracuse, of counsel).

Before CARDAMONE, J. P., and SCHNEPP, CALLAHAN, WITMER and MOULE, JJ.

CARDAMONE, Justice Presiding:

In this Article 78 proceeding petitioners Mulroy and Auer, who have previously been charged and convicted by Special Prosecutor Andreoli with conspiring illegally to raise funds for the Onondaga County Republican Committee, seek to prohibit further prosecution. The special prosecutor asserts that petitioners' activities over a period of years have violated the general conspiracy statutes and several other substantive statutes of New York. He has secured three indictments-1978, 1979 and 1980-against petitioners. The 1978 indictment has been tried. The other two are pending. Petitioners claim that since they have already been once tried for conspiracy, they may not again be tried upon the 11 counts of the 1979 and 1980 indictments. We hold that since eight general conspiracy counts of the pending indictments constitute double-jeopardy they must be dismissed and that two of the three remaining substantive counts must also be dismissed, and trial is, therefore, precluded on these ten counts. There remains one viable count in the 1979 indictment which charges petitioners with an illegal combination in restraint of trade and competition in violation of General Business Law, §§ 340 and 341.

The indictments under attack in this special proceeding stem from an investigation into illegal political fund-raising activities, which allegedly took place in the offices of several Onondaga County governmental departments over many years, but focused principally in the 1970s. Pursuant to the authority contained in Executive Order No. 42, Hon. Louis J. Lefkowitz, then Attorney-General, appointed respondent Peter D. Andreoli Special Deputy Attorney General in charge of the investigation. By issuing Executive Order No. 43, Governor Hugh L. Carey appointed Hon. Lyman H. Smith, Justice of the Supreme Court, to hold the Extraordinary Special and Trial Term, presiding over the matters raised by the investigation. As a result of this investigation, certain indictments were returned naming petitioners as defendants.

STATUS OF INDICTMENTS

A. 1978 Indictment :

A 1978 indictment, the so-called "ticket sales" indictment charged petitioners and others with conspiracy, fourth degree (formerly Penal Law, § 105.00, now recodified as Penal Law, § 105.10) and with conspiracy to promote or prevent election (formerly Election Law, § 446, now recodified as Election Law, § 17-152). Under the first count, petitioners were charged with conspiring to commit the crimes of Official Misconduct (Penal Law, § 195), Prohibition Against Certain Political Activities, Improper Influence (Civil Service Law, § 107, subd. 3), Political Assessments (formerly Election Law, § 447, subds. 1, 3, 4 and 5), and Political Assessments (formerly Election Law, § 484, now recodified as Election Law, § 17-156). The second count of the indictment charged defendants with promoting The indictments involved in the instant case, # S1/1979 and # S4/1980, were returned on February 15, 1979 and August 8, 1980, respectively. ¹

the election of certain candidates by using the aforementioned unlawful means. The factual allegations of each count accuse petitioners and the others of a countywide scheme to compel employees of Onondaga County to pay political assessments and contributions to the Onondaga County Republican Committee ("Committee"). The indictment alleges that from January 1970 to the spring of 1977 certain Onondaga County officials, including petitioner Mulroy, Onondaga County Executive, and certain Committee officials, including then Chairman, petitioner Auer, agreed to use their official status to compel such payments generally through the sale of tickets to fund-raising functions. Each count of the indictment alleges numerous overt acts committed in furtherance of the conspiracy. Trial under this 1978 indictment commenced on November 7, 1979 and terminated on February 19, 1980, with a verdict of guilty against both petitioners on count one, conspiracy in the fourth degree, and a verdict of not guilty on the remaining count, conspiracy to promote or prevent election.

1979 Indictment :

Indictment # S1/1979, the so-called "insurance" indictment, charged petitioners and one Roger C. Moreland with conspiracy, second degree (formerly Penal Law, § 105.10, now recodified as Penal Law, § 105.15), conspiracy, third degree (formerly Penal Law, § 105.05, now recodified as Penal Law, § 105.13), conspiracy, fourth degree (formerly Penal Law, § 105.00, now recodified as Penal Law, § 105.10), conspiracy to promote or prevent elections (Election Law, § 17-152, formerly Election Law, § 446), and combination in restraint of trade and competition (General Business Law, §§ 340 and 341). The factual allegations of the various counts of the 1979 indictment depict a conspiracy, designed to obtain funds for the Committee from various insurance agents and brokers ("Insurance Vendors") which sold insurance to the County. The indictment alleges that the defendants informed certain Insurance Vendors that in order to obtain and retain business with the Insureds they were required to make payments from their commissions ("Commission Shares") to the Committee, and to other insurance agencies ("Share Receivers"); that the Share Receivers, although not entitled to any Commission Shares, received such shares from the Insurance Vendors in amounts determined by the conspirators based on the amount of each Share Receiver's contribution to the Committee. It is further alleged that petitioner Auer as Committee Chairman from July 1970 to January 1974, directed Committee personnel to aid in the execution of this fund-raising plan; that Auer informed the Insurance Vendors of the amounts which they were required to pay to the Share Receivers; that defendant Roger C. Moreland administered this plan, known as the Onondaga County Insurance Program; that petitioner Mulroy, as County Executive, permitted the co-defendants and others to act on his behalf in wrongfully obtaining monies from the Insurance Vendors; and that Mulroy agreed to accept the benefit of payments made by the Insurance Vendors and Share Receivers with the understanding that he would exercise the powers of his office to benefit those making such payments. Petitioners' motion to dismiss this 1979 indictment made on May 30, 1979 was denied on July 31, 1980 by Extraordinary Special Term Justice Smith.

1980 Indictment :

Indictment # S4/1980, the so-called "heavy equipment vendor" indictment which contains six counts and 147 pages charges petitioners, along with two others, with conspiracy, fourth degree (Penal Law § 105.10), conspiracy, fifth degree (Penal Law, § 105.05), conspiracy, sixth degree (Penal Law, § 105.00), conspiracy to promote or prevent election (Election Law, § 17-152), conspiracy to prevent competitive bidding (General Municipal Law, § 103, subd. 7), and combination in restraint of trade and competition (General Business Law, §§ 340 and 341). The factual allegations of this Indictment describe a scheme to obtain illegal payment for the benefit of the Committee from companies ("Vendors") which sold or leased heavy equipment to various County agencies.

Having been arraigned on indictment # S3/1980 on May 8, 1980, petitioner moved to dismiss it on June 18, 1980. A few days after Special Term's decision denying the motion on the 1979 indictment, petitioners served copies of their moving papers in the present proceeding. Then, on August 8, 1980, petitioners were arraigned on indictment # S4/1980 which superceded indictment # S3/1980.

INSTANT PROCEEDING

The petition in the instant proceeding states two causes of action. In the first cause of action, petitioners allege that they were convicted for conspiracy under the 1978 indictment; that the charges contained in the 1979 and 1980 indictments involve a single conspiratorial plan, that each of the three fund-raising devices was a component part of a single fund-raising plan designed to raise funds from persons and groups having business relations with the County; that prosecution under the 1979 and 1980 indictments would constitute multiple trials for the same offense in violation of the double jeopardy provisions of both State and Federal Constitutions and also in violation of CPL 40.20, New York's double jeopardy statute; that respondents will, unless prohibited by this court, conduct further proceedings under the 1979 and 1980 indictments in violation of these constitutional guarantees and in excess of their jurisdiction, and that petitioners have no adequate legal remedy.

In the second cause of action petitioners allege that they were subjected to a 51/2 month trial on the 1978 indictment; that such trial has imposed physical, psychological and financial hardships upon petitioners; that if convicted upon trial of the pending indictments, petitioners will have no effective right of appeal since they will be unable to afford the purchase of a copy of the trial minutes; that they cannot endure additional trials; that the prosecutor's actions constitute harassment and prosecutorial oppression in violation of the due process clause of both State and Federal Constitutions; and that...