People v. Rattenni

• Decision Date: 13 January 1992
• Docket Number: A-1
• Citation: 179 A.D.2d 691,578 N.Y.S.2d 257
• Parties: , 1991-2 Trade Cases P 69,687 The PEOPLE, etc., Appellant, v. Alfred "Nick" RATTENNI,Compaction, Inc., American Disposal Services, Inc., Frank Giannattasio, Jr., G & G Waste Systems, Inc., and Wasteway Carting Corp., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 257

578 N.Y.S.2d 257

179 A.D.2d 691, 1991-2 Trade Cases P 69,687

The PEOPLE, etc., Appellant, v. Alfred "Nick" RATTENNI, A-1 Compaction, Inc., American Disposal Services, Inc., Frank Giannattasio, Jr G & G Waste Systems, Inc., and Wasteway Carting Corp., Respondents.

Supreme Court, Appellate Division Second Department.

Jan. 13, 1992.

Robert Abrams, Atty. Gen., New York City (Lloyd Constantine, Joseph Opper, and Gary J. Malone, of counsel), for appellant.

Vincent Lanna, Yonkers, for respondent Alfred "Nick" Rattenni, and Gilleece & Altman, White Plains (Kevin P. Gilleece of counsel), for respondents A-1 Compaction, Inc., and American Disposal Services, Inc. (one brief filed).

Goodrich & Bendish, White Plains (Reilly & Lewis, Gerald D. Reilly, of counsel), for respondents Frank Giannattasio, Jr., G & G Waste Systems, Inc., and Wasteway Carting Corp.

Before THOMPSON, J.P., and KUNZEMAN, MILLER and COPERTINO, JJ.

MEMORANDUM BY THE COURT.

Appeal by the People, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Cowhey, J.), dated March 30, 1990, as granted those branches of the defendants' omnibus motions which were to dismiss count one of a two-count indictment.

ORDERED that the order is reversed insofar as appealed from, on the law, those branches of the defendants' omnibus motions which were to dismiss count one are denied, count one is reinstated, and the matter is remitted to the Supreme Court, Westchester County, for further proceedings consistent herewith.

The indictment charged the individual and corporate defendants, who were engaged in the business of providing industrial and commercial garbage collection services, with the crime of combination in restraint of trade and competition in violation of the Donnelly Act (General Business Law §§ 340 and 341), claiming that during 1988, the defendants entered into an agreement in order "to divide and allocate among themselves certain customers for garbage collection services in Westchester County, New York, Putnam County, New York, and the State of Connecticut". The court granted so much of the defendants' omnibus motions as sought dismissal of count one of the indictment as to each and every defendant on the grounds that "the Grand Jury was improperly advised with respect to a per se violation" under the Donnelly Act, and that there was legally insufficient evidence to sustain the indictment. The court based its determination upon the "rule of reason", which it found to be the "applicable principle of law relating to the interpretation of the Donnelly Act". On appeal, the People contend that the Attorney-General's charge, which instructed the Grand Jury "that an arrangement, combination, or conspiracy among actual or potential competitors to divide and allocate customers is, without more, an unreasonable restraint of trade which violates the Donnelly Act" was proper, and further that the evidence was legally sufficient to sustain the indictment. We agree.

Viewing the evidence presented to the Grand Jury in the light most favorable to the People (CPL 220.30, 70.10; People v. Jennings, 69 N.Y.2d 103, 115, 512 N.Y.S.2d 652, 504 N.E.2d 1079), we find that it was sufficient to establish the elements of the offense charged and the defendants' commission thereof ( People v. Mikuszewski, 73 N.Y.2d 407, 411, 541 N.Y.S.2d 196, 538 N.E.2d 1017; People v. Jennings, supra, 69 N.Y.2d at 115, 512 N.Y.S.2d 652, 504 N.E.2d 1079). There was legally sufficient evidence to establish that in June 1988 the defendants met and entered into an illegal agreement to exchange approximately 100 customers of the defendant Wasteway Carting Corp. (hereinafter "Wasteway"), a New York corporation which is a wholly-owned subsidiary of G & G Waste Systems, Inc., based in Connecticut, for approximately 50 customers of the defendant American Disposal Services, Inc. (hereinafter "ADS"), a Connecticut-based subsidiary of A-1 Compaction, Inc., a New York corporation, and that a list was drawn up containing the names of these customers. Sufficient evidence was also presented indicating that prior to the effective date of this agreement the respective defendants were engaged in a sustained price war in an attempt to take customers away from one another, but that afterwards neither ADS nor Wasteway serviced or solicited any of the other's customers contained in the list.

Based upon the indictment and the evidence presented before the Grand Jury, we also agree with the People concerning the Attorney-General's "per se" violation charge. It is well established that the horizontal customer allocation agreement would constitute a per se violation of the Sherman Act, the Federal antitrust statute (United States v. Topco, 405 U.S. 596, 608, 92 S.Ct. 1126, 1133, 31 L.Ed.2d 515; see also, Palmer v. BRG of Georgia, 874 F.2d 1417, [11th Cir.1989], amended 893 F.2d 293, [1990], revd. 498 U.S. ----, 111 S.Ct. 401, 112 L.Ed.2d 349; ...