People v. Squillante
| Decision Date | 09 March 1959 |
| Citation | 18 Misc.2d 561,185 N.Y.S.2d 357 |
| Parties | PEOPLE of the State of New York v. Vincent J. SQUILLANTE, Nunzio Squillante and Bernard Adelstein, Defendants. |
| Court | New York Supreme Court |
Manuel W. Levine, Dist. Atty., Nassau County, Mineola, Henry P. DeVine, Asst. Dist. Atty., Mineola, of counsel.
Sol Gelb, New York City, Nicholas L. Castellano, Valley Stream, for defendants.
Dreiband, Bleecker & Silberman, New York City, for defendant Adelstein, Edward J. Neary, Mineola, trial counsel.
After conviction on three counts of an extortion indictment and sentence of Vincent Squillante to 7 1/2 to 15 years, Nunzio Squillante to 2 to 5 years, and Bernard Adelstein to 5 to 10 years, the defendants, having appealed, seek a certificate of reasonable doubt and the fixation of bail. Application granted as to all three defendants. Suggestions as to bail will be received with the proposed order to be entered on this decision, which order may be settled on one day's notice.
The inquiry which this Court is required to make is not of the guilt or innocence of the defendants nor whether their convictions will be reversed on appeal, but simply whether 'in the opinion of said court their is reasonable doubt whether the judgment should stand'. Code Cr.Proc. § 527. In other words, the only problem before the Court is whether any question of substance has been raised for consideration by the Appellate Division. People v. Saperstein, 206 Misc. 482, 133 N.Y.S.2d 570; People v. Brody, 190 Misc. 351, 77 N.Y.S.2d 377; People v. Nisonoff, 181 Misc. 696, 50 N.Y.S.2d 420.
The crime with which these defendants are charged is extortion. The theory of the indictment is that they aided and abetted each other and one Nolan in obtaining from the stores named in the indictment sums of $20 or more per month by demanding under threat of picketing that the stores cease dealing with a non-union cartman and deal instead with General Sanitation Service Corporation and other union cartmen, while in truth General Sanitation and other firms named by defendants were not union businesses. A number of errors are urged by defendants. It is necessary to consider only three.
First, defendants urge that the only money paid was for services rendered, the amount paid was the same as that paid to the previous contractor, the services were, therefore, clearly worth the amount paid, and consequently no 'property' was obtained from the stores within the meaning of Penal Law, § 850. The People contend, however, that money was paid by each of the stores in question and that it is immaterial that a quid pro quo was received for the money, citing People v. Fichtner, 281 App.Div. 159, 118 N.Y.S.2d 392, affirmed 305 N.Y. 864, 114 N.E.2d 212. That case held it to be extortion to obtain money from an alleged shoplifter by threatening him with prosecution, even though the money received was equal to or less than the amount the shoplifter should have paid. Logically that holding may be extended to the instant case, and it was so extended in the charge to the jury. There is, however, a substantial question whether the charge will be upheld in view of the statutory protections which hedge labor's right to picket. The Fichtner case and the 'property' elements of the crime cannot be considered separately from the element which requires that there be a 'wrongful use of force or fear' by threat 'to do an unlawful injury'. Penal Law, §§ 850, 851. As noted above, the theory of the indictment was that the picketing was wrongful and threatened an unlawful injury because General Sanitation and other listed firms though represented to be union were in fact non-union. The charge was that if those firms were not union the picketing was not advancing unionism, that is, was not for a lawful purpose, but that if they were union the threat to picket could be bona fide. The jury may, therefore, have found defendants guilty on the theory that the firms were union but that the picketing was not in good faith, i. e., was for the illegal purpose of obtaining money. While People v. Hughes, 137 N.Y. 29, 32 N.E. 1105, People v. Barondess, 133 N.Y. 649, 31 N.E. 240, and People v. Weinseimer, 117 App.Div. 603, 102 N.Y.S. 579, affirmed 190 N.Y. 537, 83 N.E. 1129 all establish that it is extortion to demand money under threat of a boycott, strike or other labor sanction, those cases all involved the payment of money in addition to that paid for the service involved. Where, as here, nothing is paid except for services, there would appear to be a substantial question whether the Court should not have charged as requested that if the firms were union the threat to picket was lawful and if the payments were for services rendered defendants were not guilty. This was the theory on which the indictment was framed, and in view of the effect that a contrary holding would have on labor's right to picket for a union shop, there is doubt whether the appellate courts will sustain the judgment on this point.
Apparently recognizing that there is some validity to defendant's argument, the People reply that the stores lost the freedom to contract with the cartmen of their choices, and that that right is 'property' within the section. While the case was not tried on this theory, it will be considered. It would appear that the right to contract may be property injured under Section 851 of the Penal Law (), but it is difficult to consider that right property obtained under Section 850. 'Obtaining of property from another' imports not only that he give up something but that the obtainer receive something. At least no New York case to the contrary has been cited, and the two federal cases cited by the People are distinguishable; Nick v. United States, 8 Cir., 122 F.2d 660, 665, because the statutory definition encompassed not only property but 'other valuable consideration', and United States v. Green, 350 U.S. 415, 76 S.Ct. 522, 100 L.Ed. 494, because amendment of the statute after a prior holding made clear that the amendment was intended to reach the situation in question. It is apparent, therefore, that even on this theory a substantial question exists.
Second, defendants moved at the end of the People's case and at the end of the whole case to dismiss the indictment on the ground that...
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Chisler v. State
...because "professional services" is not included in the definition of "property" set out in § 13A-8-1(10). Citing People v. Squillante, 18 Misc.2d 561, 185 N.Y.S.2d 357 (1959), the defendant argues that although the right to contract for professional services is one that may be lost by the v......