People v. Hochberg

• Decision Date: 13 April 1978
• Parties: The PEOPLE of the State of New York, Respondent, v. Alan HOCHBERG, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 161

404 N.Y.S.2d 161

62 A.D.2d 239

The PEOPLE of the State of New York, Respondent, v. Alan HOCHBERG, Appellant.

Supreme Court, Appellate Division, Third Department.

April 13, 1978.

Goldberger, Feldman & Breitbart, New York City (Joel A. Brenner, East Northport, of counsel), for appellant

Arthur Weinstein, New York City, for respondent.

Before GREENBLOTT, J. P., and KANE, LARKIN, MIKOLL and HERLIHY, JJ.

OPINION FOR AFFIRMANCE

MIKOLL, Justice.

The People charged that the defendant, Assemblyman Alan Hochberg, met with one, Charles Rosen, in January and February, 1976, to secure Rosen's promise not to run against him in the 1976 Primary for the Assembly in exchange for Hochberg's promise to give Rosen a $20,000 a year job in the Legislature, a session job for Rosen's brother-in-law paying approximately $3,000, and a $5,000 political campaign contribution. The defense contended that Hochberg's discussions with Rosen were for the purpose of establishing a working political coalition between Rosen, the political group in Co-op City which evolved during the rent strike and defendant's group in Pelham Park, as well as filling positions on his legislative staff with qualified persons.

The defendant was convicted of violating section 421 (subd. 5) of the Election Law (Penal Law, § 110.00) which prohibits the fraudulent or wrongful doing of any act tending to affect the result of a primary election; section 448 of the Election Law which prohibits any person, while holding public office, from corruptly using or promising to use his official authority to secure public employment upon consideration that the person so to be benefited or any other person will give or use their political influence or action in behalf of any candidate, or upon any other corrupt condition or consideration; and section 77 of the Public Officers Law which makes it a felony for any member of the Legislature to ask, receive, consent or agree to receive "any money, property or thing of value or of personal advantage" for performing any discretionary act which he may exercise by virtue of his office. The jury acquitted defendant of a fourth charge of violating sections 110.00 and 155.35 of the Penal Law, attempted grand larceny in the second degree.

The People's evidence established that defendant was the State Assemblyman from the heavily Democratic 81st Assembly District (A. D.) located in the Bronx, New York. He was to be a candidate for re-election in the 1976 elections for the term of office commencing January 1, 1977. The district was divided into two sections, 81st A. D. West, which consisted of an area known as Pelham Parkway where defendant resided and which area he controlled and 81st A. D. East, known as Co-op City, a large housing development community of about 60,000 people, where, Charles Rosen, Chairman of Steering Committee III, was the very popular leader of a rent strike supported by 86% Of the residents. Co-op City was 99% Democratic in party affiliation and comprised about 40% Of the Democratic primary vote in the district. Pelham Parkway supplied about 60% Of that vote. Success in the Democratic primary was tantamount to election in the 81st A. D.

In the early summer of 1975, it had been discovered that New York City Councilman, Stephen Kaufman, had deceived the residents of Co-op City by his duplicitous conduct involving the rent strike. He was the only elected public official living in Co-op City but he became unelectable because of his rent strike duplicity. His actions were defended by the regular Democratic Club leadership in the district who were, at best, considered lukewarm in their support of the rent strike. There were regular and reform factions splitting the democratic support outside of Co-op City in the summer, fall and early winter months of 1975-76.

Larry Dolnick, a Vice-Chairman of Steering Committee III, and Elliot Engel were leaders of the New Democratic Club formed in the 81st A. D. East. This club included both reform Democrats and regulars who were dissatisfied with the regular Democratic Club. According to Dolnick, the defendant first approached him and Engel with offers of defendant's support. He indicated to Dolnick that he wanted to run for Civil Judge in 1977, that his Assembly seat would then be open and that he would introduce Dolnick into the Pelham Park area so that he could take over his position as Assemblyman. When Dolnick told defendant he was not interested in public office, defendant offered him a job on his staff at a salary of.$19,000-$20,000. Dolnick said he could not take such a job because of his association with the rent struggle. The Assemblyman then offered him a job for a lesser amount of money with the Legislature where "he wouldn't have to appear." Dolnick further said that in connection with the upcoming 81st District leadership race, at which either he or Elliot Engel would be the candidate, defendant offered to contribute $750 to that campaign.

Defendant told Dolnick that he did not want a primary in 1976 because it would be expensive. On different occasions he inquired of Dolnick whether Charles Rosen intended to run against him. Dolnick said Rosen did not. However, defendant said he wanted to hear it from "the horse's mouth" and wanted Dolnick to set up a meeting. He stated that Rosen would be a viable candidate, that a primary campaign for the Assembly would cost upwards of $25,000 and that he wanted to run for Civil Judge in 1977 and that that was the reason he wanted to be sure Rosen would not run. Dolnick thereafter advised Rosen that the defendant wanted to talk to him and told Rosen of the offers the defendant had made to him.

Charles Rosen testified that he visited the office of the Special Prosecutor for Nursing Homes in December, 1975, to discuss defendant's connection with the Nursing Home Industry. He mentioned what he characterized as defendant's "third party bribe" offer and the Special Prosecutor subsequently suggested that Rosen meet with the defendant to allow him to repeat the "bribe."

On January 27, 1976, Dolnick and Rosen went to the Special Prosecutor's office and arrangements were made to record the meeting defendant requested. The first tape recording played at trial revealed that Dolnick, Rosen and defendant met at Dolnick's apartment on January 30, 1976, where defendant stated he did not want a primary in 1976, that he wanted to run for the bench in 1977 and that he wanted their support for that office. The discussion included references to defendant's job offer to Dolnick and his proposed $750 contribution for the New Democratic Club campaign. At this meeting defendant stated that he was willing to help Rosen achieve his dreams because the $25,000 he would probably have to spend in a tough primary against Rosen would kill his judgeship race. Defendant stated that he would not have the resources for two campaigns. Defendant offered the $20,000 job on his staff to Rosen but said they would have to work it out with Dolnick first because he had offered the same job to him. Defendant also said he would raise $5,000 for Rosen's 1978 Special Election campaign for the Assembly by recommending that other people contribute to Rosen's campaign fund.

On February 5, 1976, Rosen and the defendant met alone at the Larchmont Diner. The tape recording of this meeting disclosed that defendant offered to place Rosen in a $3,000 job on his committee at the current session. It was agreed Rosen could not take it, but that any name would be acceptable to defendant as a "stand-in" for Rosen. That conversation went like this:

ROSEN: Now, you talked about this job on your committee. I can't take that job.

HOCHBERG: Who can? Is that a thought?

ROSEN: That somebody would be a stand-in.

HOCHBERG: Right. Does it look bad if your wife?

ROSEN: What about my sister-in-law * * * or my brother-in-law

HOCHBERG: Matter of fact * * * as I told you, as of Monday, at least for the figure I had quoted you they can * * * come up and sign on. Immediately

ROSEN: So who will know.

HOCHBERG: That's right. All right. Thats. That's that.

Defendant further stated in the taped conversation that he could guarantee Rosen $5,000 for his Special Election campaign and that the $3,000 session job was evidence of his good faith in that it would be completely paid before the primary. Rosen testified that in addition defendant said, "I will give you " and then proceeded to write on a napkin the figure $5,000, asking him to nod if it was acceptable.

He also said that if the rent strike was not over, Rosen's stand-in could be placed in the $20,000 job. When Rosen asked defendant not to put the stand-in's name on the payroll until Wednesday instead of the Monday, as planned, the defendant made reference to the stand-in losing. Rosen replied, "Schmuck, he's losing nothing, I'm getting the money." Defendant agreed, "But that's it, you're losing, why * * * ?" Rosen explained he had to talk the matter over with his wife.

At a subsequent recorded meeting on February 8, 1976, Rosen advised the defendant that the "stand-in" would be in Albany the following day. Rosen asked him when the arrangement regarding the $5,000 contribution which he had written on the napkin would be consummated. Defendant said that he had an, "excellent mechanism to protect both of us." Rosen could set up a bank account in the name of a campaign committee and contributions could be made to that entity by defendant. "No problems, it's perfectly legal." he assured Rosen.

The stand-in for Rosen, his brother-in-law, Chris Johnson, who was equipped with a recording device, arrived in Albany the next day and defendant accompanied him to the necessary offices so that he could be put on the payroll. Defendant told Johnson that he would not have to come to Albany again but he would like Johnson to answer some mail at home.

The defense, through cross-examination of Rosen, and the testimony of defense witness, Philip Luce,...