People v. Bareika

• Decision Date: 27 July 1960
• Citation: 203 N.Y.S.2d 355,11 A.D.2d 292
• Parties: PEOPLE of the State of New York v. Harry BAREIKA, Harry Bareika, Inc., Walter Motor Truck Company and Rand-MacMurray, Inc., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 355

203 N.Y.S.2d 355

11 A.D.2d 292

PEOPLE of the State of New York v. Harry BAREIKA, Harry Bareika, Inc., Walter Motor Truck

Company and Rand-MacMurray, Inc., Defendants.

Supreme Court, Appellate Division, Third Department.

July 27, 1960.

Bernard Tompkins, Sp. Asst. Atty. Gen., in Charge, Ulster County Investigation, for the People.

DeGraff, Foy, Conway & Holt-Harris, Albany, for defendant Walter Motor Truck Co.

Charles H. Stoll, Hicksville, for defendant Rand-MacMurray, Inc.

John E. Egan, Kingston, for defendants Harry Bareika, Inc., and Harry Bareika.

Before BERGAN, P. J., and COON, GIBSON, HERLIHY and REYNOLDS, JJ.

HERLIHY, Justice.

The testimony before the grand jury was spaced over a period of five and one-half months. At the conclusion of the final session, the Assistant Attorney General moved for an indictment and thereafter, the foreman reported on behalf of the grand jury a verdict in favor of an indictment in violation of Section 580 of the Penal Law. The indictment was thereafter prepared and signed by the foreman but never examined, read to or by the members of the jury.

A brief chronology of the facts shows that in September, 1959, the Town Superintendent of Highways of the Town of Woodstock, Ulster County, New York, filed in the Town Clerk's office an inventory of town equipment and recommendations for the purchase of additional equipment, including a snow plow. Thereafter and at a meeting on December 22, 1959, after hearing the Superintendent, a resolution was adopted by the Town Board for standardization of equipment, materials and supplies, pursuant to Section 103, subdivision 5 of the General Municipal Law and authorized the Superintendent to advertise for bids for 'one Walter four-wheel positive drive snow plow'. Subsequently and at a meeting of the Board on January 30, 1959, the results of the bids were submitted to the Board and it was voted that the Superintendent should purchase the equipment subject to the approval of the County Superintendent of Highways. The indictment concerns the three bids for this snow plow equipment. Section 103 of the General Municipal Law governs advertising for bids and letting of contracts. Subdivision 5 relates to standardization of equipment for reasons of efficiency or economy and becomes effective upon the adoption of a resolution by a vote of at least two-thirds of the governing body.

The Superintendent of the Town when testifying before the grand jury stated that he requested three bids although the specifications were so drafted that Walter equipment alone could qualify and the Board had voted pursuant to resolution to purchase only Walter equipment. The defendant Bareika was the exclusive distributor for Walter's in Ulster County and in order to meet the mandate of the Superintendent, he requested Walter Motor Truck Company, manufacturer of the equipment, and Rand-MacMurray, Inc., distributor in an adjacent territory, to submit bids. They were considered accommodation bids. The bid submitted by defendant Walter to the town contained a legend 'cc Harry Bareika' which admittedly indicated a copy had been sent to Bareika. It further appears that the bid made by Rand-MacMurray was identical with the Walter bid except for the amount.

There was no testimony before the grand jury that the amount of the lowest bid was improper or failed to meet the specifications. The representative for Walter testified that the list price for the equipment was $20,476 and the dealer's commission was approximately twenty-five percent. The successful bid was for $19,855. While it could be argued that any or all of the three bids might have been for a lower amount, it does not follow that it was intended by these bidders to conspire to do something unlawful or corrupt. The testimony adduced by the prosecutor that Walter had sold several pieces of equipment, at one bidding, to the State for a lesser amount is no fulcrum for the indictment. Among other facts, that was open bidding, not standardization, and no dealer commission was involved, it being a direct sale from the factory to the State. The witnesses for Walter and Rand-MacMurray before the grand jury admitted that the bids were at the request of and for the accommodation of Bareika but that does not imply there was any criminal rigging or collusion or effort on the part of defendants to conceal what they were doing. The testimony seems to slant in the other direction. Nor can such acts and conduct be considered as evidence of criminal intent by Walter or Rand-MacMurray, Inc. to commit unlawful, willful and corrupt acts constituting a conspiracy between them and Bareika. As to Bareika, it is apparent his intent and purpose was solely to satisfy and meet the requirements of the Town Superintendent.

These defendants were entitled to the presumption of innocence before the grand jury.

Section 251 of the Code of Criminal Procedure captioned 'Degree of evidence, to warrant an indictment' provides: 'The grand jury ought to find an indictment, when all the evidence before them, taken together, is such as in their judgment would, if unexplained or...