People v. Fello

• Citation: 231 N.Y.S.2d 657
• Parties: PEOPLE v. Rocco FELLO and William Fello.
• Decision Date: 06 June 1962
• Court: New York Court of General Sessions

Page 657

231 N.Y.S.2d 657

PEOPLE v. Rocco FELLO and William Fello.

Court of General Sessions, New York County.

June 6, 1962.

Frank S. Hogan, New York City (Francis Clark, New York City, of counsel), for the People.

Waldman & Waldman, New York City, for defendants.

MITCHELL D. SCHWEITZER, Judge.

The defendants Rocco Fello and William Fello move for orders (1) permitting them to enter a plea of former acquittal of the crime charged pursuant to section 332, subdivision 3, of the Code of Criminal Procedure; and (2) dismissing the indictment herein against them on the ground of former acquittal pursuant to sections 9 and 139 of the Code of Criminal Procedure and sections 33 and 1938 of the Penal Law.

The indictment here sought to be dismissed charges the defendants, with another, with the crime of conspiracy to extort, and further charges them in seven additional counts with the substantive crime of extortion. Under the conspiracy count, alleging a conspiracy commencing on or about July 1, 1956, and continuing up to and including on or about October 31, 1958, seven overt acts are set forth describing specific payments to the defendant Rocco Fello by one John Fylstra on specific occasions.

The first such payment is alleged to have occurred on or about April 1, 1957, to on or about April 30, 1957, and the last such payment is alleged to have occurred on or about October 1, 1958, to on or about October 31, 1958. These seven overt acts correspond in time, amount and other details to the seven substantive counts of extortion set forth in the indictment.

The motion to dismiss is founded upon the moving defendants' acquittal after trial of charges set forth in a federal indictment which we shall describe in some detail.

The first count of the federal indictment charges the moving defendants, together with a number of others, with having engaged in 'an unlawful combination and conspiracy in restraint of interstate trade and commerce in the wholesale distribution and sale of newspapers and magazines in violation of * * * the Sherman Act.' This conspiracy is alleged to have commenced on or about January 1, 1955, and to have continued until the date of the indictment, June 23, 1959.

The terms of the agreement underlying the alleged conspiracy and combination and the means and methods used to effectuate said agreement are described as follows in paragraphs 23 and 24 of the indictment. '23. The aforesaid combination and conspiracy has consisted of a continuing agreement and concert of action among the defendants and co-conspirators, the substantial terms of which have been and are: a. To restrain the members of Suburban Wholesalers in their wholesale distribution of newspapers and magazines by coercing and compelling said members to pay to the conspirators various sums of money, as a prerequisite to obtaining labor contracts with the Union to avoid strikes or the continuation of strikes already called by said Union; b. To prevent the shipment of newspapers and magazines in interstate commerce to members of Suburban Wholesalers not acceding to the demands of the conspirators; and c. To hinder and exclude or attempt to hinder and exclude actual or potential competitors of defendants Irving Bitz, Charles Gordon and Bi-County. 24. During the period covered by the indictment, the said combination and conspiracy has been effectuated by various means and methods including, but not limited to, the use of union influence, duress and threats of strikes or strikes to compel (a) the payment of $25,000. by the members of Suburban Wholesalers to defendants Angelo Lospinuso, William Walsh and Harry Waltzer on or about January and February 1955, in connection with the negotiation of a labor contract between the Union and Suburban Wholesalers effective February 1, 1955; (b) the payment of $45,000. by Suburban Wholesalers to defendant Irving Bitz and to defendants Sam Feldman, Stanley J. Lehman, John J. Lawrence, Jr., and Harry Waltzer in connection with the negotiation of a labor contract between the Union and Suburban Wholesalers effective February 1, 1957; and (c) other payments by members of Suburban Wholesalers to various Union officials.'

Among the effects of the alleged conspiracy to restrain trade, set forth in paragraph 25 of the indictment appears the following: '25. (a) All the members of Suburban Wholesalers have been compelled to pay financial tribute as a condition for engaging in the aforesaid trade and commerce.'

The second count of the indictment charges the moving defendants and others with 'an unlawful combination and conspiracy to monopolize for defendants Irving Bitz, Charles Gordon, and Bi-County, the interstate trade and commerce in the wholesale distribution and sale of newspapers and magazines * * * in violation of * * * the Sherman Act.' This conspiracy is alleged to have commenced on January 1, 1957, and to have continued until the date of the indictment, June 23, 1959.

Paragraphs 23 and 24 of the indictment, quoted above, are realleged in the second count of the federal indictment as embodying the agreement underlying the conspiracy and combination to monopolize, and the means and methods used to effectuate said...