People v. Dioguardi

• Citation: 168 N.E.2d 683,8 N.Y.2d 260,203 N.Y.S.2d 870
• Parties: , 168 N.E.2d 683, 40 Lab.Cas. P 66,741 PEOPLE of the State of New York, Appellant v. John DIOGUARDI and John J. McNamara, Respondents.
• Decision Date: 08 July 1960
• Court: New York Court of Appeals

Page 870

203 N.Y.S.2d 870

8 N.Y.2d 260, 168 N.E.2d 683, 40

Lab.Cas. P 66,741

PEOPLE of the State of New York, Appellant v. John DIOGUARDI and John J. McNamara, Respondents.

Court of Appeals of New York.

July 8, 1960.

Frank S. Hogan, Dist. Atty., New York City (Richard G. Denzer and H. Richard Uviller, New York City, of counsel), for appellant.

William W. Kleinman, Eugene Gold and Solomon A. Klein, Brooklyn, for John Dioguardi, respondent.

Arthur Karger and Herman L. Weisman, New York City, for John J. McNamara, respondent.

FROESSEL, Judge.

The Appellate Division has reversed defendants' convictions for extortion and conspiracy to commit extortion, dismissed the indictment and discharged them from custody. In addition to the conspiracy count, the indictment charged defendants with extorting $4,700 from the officers of two corporations. Said corporations were nonunion, conducted a wholesale stationery and office supply business in Manhattan, did an annual business of several million dollars, and their stock was wholly owned by a family named Kerin. Anthony Kerin, Sr., president and 'boss' of the Kerin companies, made all the important corporate policy decisions. The other two corporate officers were his son Kerin, Jr., and one Jack Schumann.

Defendant McNamara, the alleged 'front man' in the extorsive scheme, was an official of Teamster Locals 295 and 808, as well as a member of the Teamsters Joint Council. Defendant Dioguardi, the immediate beneficiary of the payments and the alleged power behind the scene, was sole officer of Equitable Research Associates, Inc. a publishing house, according to its certificate of incorporation, a public relations concern, according to its bank account and the Yellow Pages of the telephone director a labor statistics concern, according to its office secretary and sole employee, and a firm of labor consultants, according to its business card and alternate listing in the aforesaid directory.

The 'question of law' before us is 'whether, from any view of the testimony there was a question of fact regarding the defendant(s') guilt which should have been submitted * * * to the jury and not disposed of by dismissal in the appellate court.' People v. Bellows, 281 N.Y. 67, 73, 22 N.E.2d 238, 241. The facts may be summarized as follows:

Between November, 1955 and mid-January, 1956, the Kerin companies were confronted with organizational activities on the part of four unions. A CIO local first contacted management by letter. Two visiting representatives from Teamster Local 210 then threatened to organize the companies by 'putting pickets out' and 'stopping shipments' if management did not agree to organize the employees on behalf of their local. Some six weeks later a picket appeared at the delivery and shipping entrance in the rear of the Kerin premises, carrying a placard reciting that one of the Kerin companies was unfair to members of Teamster Local 138. No representative from that local ever contacted management, and all its officials testified that they had not authorized a picket line at the premises.

Finally, during the week in which the picket was parading at the rear, two organizers from Local 1601 of the Retail Clerks International Association appeared in the front lobby distributing literature to the companies' employees. This last union had been recommended to management by another stationery concern, and had been sought out by Kerin, Sr., who wished to have his employees organized by a strong, competent, ethical union. Although the president of that local had promised to promptly send representatives to canvass the employees, nothing happened for three weeks, and the belated appearance of Local 1601 organizers only compounded the confusion in the minds of the Kerin officers, further complicating an already complex labor situation.

The appearance of the picket line which truck drivers from two companies refused to cross thoroughly alarmed the Kerin officers, since they were in an 'extremely competitive business', and a cessation of incoming or outgoing truck deliveries for as short a period as two weeks would effectively force them out of business. Their attorney, William Coogan, advised them that filing a petition with the National Labor Relations Board (N.L.R.B.) for an election among the competing unions would not constitute a solution, since such proceeding might take anywhere from two weeks to three months, and peaceful picketing could not be enjoined before, during or even after the election. He felt that a consent election was the best way to settle the matter, and informed them that he might be able to meet with a prominent teamster official on a higher level, who would call a halt to the 'ridiculous' situation of two teamster locals competing with each other.

Coogan had previously been in touch with his brother-in-law, William White, a labor law professor who had met McNamara socially and, after the Kerin management agreed, White contacted McNamara and arranged a meeting with him and Coogan. At the meeting, McNamara was generally discouraging as to the feasibility of a consent election. However, after joining Coogan in a men's room, McNamara suggested privately 'that something might be done, but that it would be expensive * * * it could run five to ten thousand dollars'. After Coogan vetoed that possibility, and McNamara had made several telephone calls, the three adjourned to a Chinese restaurant recommended by McNamara for dinner, during the course of which one Milton Holt approached the table and was introduced by McNamara as an attorney, although, in fact, he was an officer of Teamster Local 805 and not a member of the Bar. After Holt was apprised of the labor difficulties confronting the Kerin companies, McNamara stated: 'This looks to me to be the kind of a situation which Equitable can help out', to which Holt nodded an affirmative. Neither White nor Coogan had ever heard of Equitable before that day, and they neither sought nor received enlightenment.

The following morning Coogan reported to the Kerin officers that he had had 'a very rough evening' with McNamara whom he described as a 'tough-talking man' who 'was obviously a high official in the labor movement', 'had a grasp of the whole situation' and 'knew what was going on' and that 'the gist of the conversation was that * * * for a payment of ten thousand dollars, the whole matter could be settled, and settled almost immediately'. Kerin, Sr., 'almost had a stroke' and furiously asserted that he would rather close up his business than 'pay ten thousand dollars, or any amount of money, to anybody'. According to Kerin, Jr., his father inquired: 'What happens if we don't pay?', to which Coogan replied that 'orders could be given through the Teamsters Joint Council to this area to make the picket line completely effective; that it would block off almost one hundred per cent all deliveries and all receiving'. Coogan further stated that they could explore the situation further if they desired, but that his firm would have no future discussions of any kind with McNamara.

After waiting for his father to 'cool off', Kerin, Jr., and Schumann told him that he owed it to them and the employees at least to discuss the situation with McNamara. Kerin, Sr., finally agreed to such a meeting, but then did nothing about it. Two days later, McNamara first telephoned White and then Coogan to inquire of each whether Coogan's client was 'interested' in pursuing their discussion of the other evening. He gave Coogan two telephone numbers at which he could be reached, one of which was the office number of Equitable. After Coogan furnished Schumann with the numbers, the latter called McNamara and arranged a meeting for the following day at the Manhattan Club.

On Friday afternoon, January 20, 1956, McNamara, accompanied by Holt whom he again introduced as his attorney met with the three Kerin officers in a private diningroom at the Manhattan Club. Holt soon suggested the Kerin, Sr., and 'step outside and have a chat' and, after adjourning to another room, McNamara assured Kerin, Sr., that his troubles could be ended, and would be, if he did three things: (1) 'joined up' with McNamara's Local 295, (2) paid $3,500 to Equitable to defray the 'out-of-pocket' expenses incurred by the various unions that had sought to organize the companies, and (3) retained Equitable as labor consultant at $100 per month for each company for the period of the collective bargaining contract to be signed with Local 295, for which the companies 'would get counsel and advice * * * in any matter that was pertinent or related to labor or labor relationships'. McNamara repeatedly assured Kerin, Sr., that the picketing would stop immediately and the companies would be guaranteed labor peace if his program were accepted.

Kerin, Sr., stated that he was not averse to having his employees organized by Local 295, if it was a good honest union, and that he could 'accept the idea of a hundred dollars a month as a retainer fee for labor counsel and advice'. He protested against the proposed payment of $3,500, however, as an 'extraordinary charge' that sounded 'like a holdup', to which McNamara replied: "It may seem that way to you, Mr. Kerin, but that is the amount of money that these unions that have sought to organize you * * * have expended, and if we are going to avoid further trouble and further difficulties, it is my suggestion that you pay that to the Equitable Associates. If you don't pay it, we can't go through with the program.' That was either said or implied. * * * I better withdraw that. That was the point.' (Emphasis supplied.) Kerin, Sr., finally agreed, after insisting upon a written contract with Equitable and payment by check. Upon returning to the rest of the group, he advised his son and Schumann of the terms of McNamara's program. He emphasized that the payments to Equitable were necessary 'in order to get rid of (t...