People v. Forde

• Decision Date: 20 February 1990
• Parties: The PEOPLE of the State of New York, Appellant, v. Martin FORDE, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 113

552 N.Y.S.2d 113

153 A.D.2d 466

The PEOPLE of the State of New York, Appellant, v. Martin FORDE, Defendant-Respondent.

Supreme Court, Appellate Division First Department.

Feb. 20, 1990.

Howard L. Perzan, Brooklyn, of counsel (Mark Dwyer, Robert A. Mass and Joseph P. Armao with him on the brief; Robert M. Morgenthau, New York City, attorney), for appellant.

Thomas J. Cahill, New York City, for respondent.

Before SULLIVAN, J.P., and ROSS, CARRO, MILONAS and ROSENBERGER, JJ.

ROSS, Justice.

The primary issue presented in this appeal is whether an indictment charging extortion is legally sufficient, where the alleged extortion resulted from the enforcement of an otherwise legal contract.

In December 1986, a New York County Grand Jury commenced an investigation into alleged corruption in the carpentry and dry wall industry.

Mr. Roger Berk, who was the President of Haywood-Berk Flooring Company (Haywood), which is located in New York County, was a witness before that Grand Jury.

He testified that Haywood was engaged in the business of installing, and, refinishing floors, and, in the fall of 1985, Haywood began work in the Equitable Life Insurance building (Equitable), located at 7th Avenue, between 51st and 52nd Streets, Manhattan, pursuant to a $625,000.00 contract. The provisions of the Equitable contract required Haywood to, in substance, install parquet floors, which, since intricate work was involved, required carpenters with special skills, and, it was the largest contract Haywood had ever received.

Further, Mr. Berk testified that Haywood had a Collective Bargaining agreement with the United Brotherhood of Carpenters and Joiners Union (Union), which contained clauses, which obligated Haywood to obtain from the Union up to 50% of the number of carpenters used on a job site, and, prohibited Haywood from using "lumpers", who were carpenters, who were paid by the amount of work they completed, rather than by the hour. Whether the Union actually enforced the "matching" and/or "lumpers" clauses depended on the decision of the business agent of the Union Local, located in the area of the job site.

The Equitable job was located within the jurisdiction of Local 608.

Expensive wood was being used on the Equitable job, and, Mr. Berk testified "[w]ood flooring is not terribly common. Very few men can actually do it. The men who do that kind of work usually are trained by the company that do it [, such as Haywood] ..." (see, People's Appendix on Appeal (A), at A22-23) [material in brackets added].

Since the Equitable contract was the largest that Haywood had ever received, and, as mentioned supra, the carpenters were required to do specialized work, Mr. Berk testified that he was very apprehensive about dealing with Local 608, in view of the fact same had, inter alia, a reputation for corruption in the industry, and, a habit of sending unskilled men, "who ... deliberately had to make a job worse, to sabotage a job" (see, at A167-168). Specifically, he remembered a 1979 job, on which he was working for his father, when a group of men from Local 608 had arrived on that job site, and, "deliberately ..., just made it a real mess ..." (see, at A65-66).

Without a waiver of immunity, Mr. Berk testified three times before the Grand Jury, on January 9, 26, and, June 29, 1987. On that last date, he testified (see, A325) that, due to his fear of retaliation from the Union, he had lied in his previous testimony, by, inter alia, giving false answers to questions about unlawful dealings he had with various officials of Local 608, such as Messrs. John O'Connor and Martin Forde. He promised to henceforth testify truthfully, pursuant to his agreement (see, A325) with the New York County District Attorney's Office (DA), which provided that he would not be prosecuted for perjury, and, contempt.

Mr. Forde was a business agent for Local 608. Soon after the Equitable job was underway, in approximately September or October 1985, Mr. Berk received a telephone call from Mr. Forde, who sounded very agitated. In that conversation, Mr. Forde summoned Mr. Berk to his Union Headquarters office, because, according to Mr. Forde, there was trouble on the job site, since Haywood was not using men from Local 608.

On June 29th, Mr. Berk testified that, when he arrived at Mr. Forde's office that afternoon, Mr. Forde told him, in substance, there was a problem, since Mr. Forde was being embarrassed, by the lack of Local 608 men on the Equitable job site. In response, Mr. Berk testified (see, at A331): "I told Martin [Forde] I don't want any trouble and he said, 'well, what's it worth to you'. I said 'Martin ... I don't know' ...". Thereafter, Mr. Berk testified (see, at A-331) that Mr. Forde "either indicated with his fingers or whispered very low, I'm not sure which, two, like that", and, our examination of the record (see, at A-331) indicates that, when Mr. Berk uttered the words "two, like that", he held up two fingers "like a victory sign". Further, Mr. Berk testified (see, at A331-332) that he asked Mr. Forde if he meant two thousand, and, Mr. Forde "nodded, yes ... and that was the end of that meeting."

Further, Mr. Berk testified (see, at A331-333) that he interpreted Mr. Forde's conduct to be "an implied threat", which meant that, if Mr. Berk did not pay Mr. Forde $2,000.00, Mr. Forde would use, inter alia, the "matching" clause of the Collective Bargaining agreement to send a large number of unqualified men from Local 608 to the highly specialized Equitable job, and, the effect of that would have been financially costly to his company.

A couple of days after his meeting with Mr. Forde, Mr. Berk testified that he telephoned Mr. Forde and, invited him for lunch at Gallagher's Restaurant, in New York County. When lunch was over, Mr. Berk testified (see, at A-334) he went to the bathroom in that restaurant, and "I did have two thousand dollars in a pocket ... and I noticed that Martin [Forde] following me very close behind [into the bathroom] ... I took out the envelope which contained the money, and I either placed it on a shelf, or on the sink, or something, and, Martin [Forde] took it and picked it up, he put it away ..." [material in brackets added]. After completing the transfer of the $2,000.00 to Mr. Forde, Mr. Berk testified they left the bathroom.

In May 1986, Mr. Berk was then cooperating with the DA, and, as a result, he wore a concealed tape recorder, when he met Mr. Forde, at the Movenpick Restaurant. During that meeting, Mr. Berk testified (see, A346-349) that, while Mr. Forde admitted having lunch with Mr. Berk in Gallagher's Restaurant, Mr. Forde denied receiving any money at that time.

Throughout the remainder of the Equitable job, Mr. Berk testified that, although Local 608 sent some men to the job, the number was far lower than 50% of the total number of carpenters for the job.

Upon the basis of Mr. Berk's testimony, by indictment, number 7951, filed September 4, 1987, the Grand Jury charged Mr. Forde (defendant) with committing the crimes of grand larceny in the second degree, by extortion (Penal Law (PL), § 155.35), grand larceny in the second degree (PL, § 155.35), bribe receiving by a labor official (PL, § 180.25), and, engaging in a specific prohibited financial interest and transaction (Labor Law, § 723, subdivision 1, paragraph (e), and, § 725, subdivision 4).

Defendant moved to dismiss that indictment, and Criminal Term granted that motion. Accordingly, we have this appeal by the People.

When a defendant moves to dismiss an indictment, pursuant to Criminal Procedure Law (CPL), § 210.30, "the standard of judicial scrutiny is whether there was 'competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof' (CPL, § 70.10, subd 1) ..." (People v. Warner-Lambert Co., 51 N.Y.2d 295, 298-299, 434 N.Y.S.2d 159, 414 N.E.2d 660 (1980), cert. denied 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227 (1981)). The Court of Appeals held in People v. Mayo, 36 N.Y.2d 1002, 1004, 374 N.Y.S.2d 609, 337 N.E.2d 124 (1975), that "[i]n the context of the Grand Jury procedure, legally sufficient [evidence] means prima facie, not proof beyond a reasonable doubt ..." [material in brackets added].

In evaluating the sufficiency of the evidence considered by the Grand Jury, we are required to determine "whether the evidence viewed in the light most favorable to the People, if unexplained and uncontradicted, would warrant conviction by a petit jury ..." (People v. Jennings, 69 N.Y.2d 103, 114, 512 N.Y.S.2d 652, 504 N.E.2d 1079 (1986)).

Until rebutted the presumption is that indictments are valid (People v. Pelchat, 62 N.Y.2d 97, 106, 476 N.Y.S.2d 79, 464 N.E.2d 447 (1984)). A defendant, who moves to dismiss an indictment, bears the burden of proof that same is legally insufficient (People v. Howell, 3 N.Y.2d 672, 675, 677, 171 N.Y.S.2d 801, 148 N.E.2d 867 (1958); and, People v. Deitsch, 97 A.D.2d 327, 329, 470 N.Y.S.2d 158 (1983)).

Count one of the indictment, which charges the crime of grand larceny in the second degree, by extortion, reads, in pertinent part, that defendant "stole property, to wit, $2000.00, from Roger Berk, by instilling in Berk the fear that, if the money were not delivered to him, Forde and others would perform an act which would not in itself materially benefit Forde, but which was calculated to harm Berk materially with respect to his business, to wit, that Forde would require that fifty percent of all men on a certain jobsite [sic ] of Haywood-Berk Flooring, Berk's company, be sent to the site by the union and to prohibit the use of that jobsite of 'lumpers' ...".

Penal Law, § 155.05(2), paragraph (e), defines larceny by extortion, in pertinent part:

"A person obtains property by extortion when he...