People v. Wheatman

• Decision Date: 02 December 1971
• Citation: 327 N.Y.S.2d 643,277 N.E.2d 662,29 N.Y.2d 337
• Parties: , 277 N.E.2d 662 The PEOPLE of the State of New York, Appellant-Respondent, v. Nathan WHEATMAN, Appellant, and Jerry Jerome, Jered Contracting Corp., SamuelSpector, Dunrite Painting Co., Inc., Arnold Marcus and Marcus Decorating Co.,Inc., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 643

327 N.Y.S.2d 643

29 N.Y.2d 337, 277 N.E.2d 662

The PEOPLE of the State of New York, Appellant-Respondent, v. Nathan WHEATMAN, Appellant, and Jerry Jerome, Jered Contracting Corp., SamuelSpector, Dunrite Painting Co., Inc., Arnold Marcus and Marcus Decorating Co.,Inc., Respondents.

Court of Appeals of New York.

Dec. 2, 1971.

Frank S. Hogan, Dist. Atty. (Lewis R. Friedman and Michael R. Juviler, New York City, of counsel), for appellant-respondent.

Frederick H. Block, New York City, for Arnold Marcus and Marcus Decorating Co., Inc., respondents.

Allen H. Weiss and Benjamin Shedler, New York City, for Samuel Spector and Dunrite Painting Co., Inc., respondents.

Irving Anolik, New York City, for Nathan Wheatman, appellant.

Irving Anolik, New York City, for Jerry Jerome and Jered Contracting Corp., respondents.

FULD, Chief Judge.

Seven defendants were adjudged guilty of crimes of conspiracy and bribery following a jury trial and, on appeal, the Appellate Division reversed and ordered a new trial (33 A.D.2d 67, 304 N.Y.S.2d 904) holding that the affidavit, relied on by the District Attorney to procure search warrants, was insufficient. The People took an appeal to our court, following a grant of leave but, before that appeal was perfected, the Appellate Division, upon the District Attorney's application, granted a reargument with respect to the defendant Wheatman (33 A.D.2d 1107). Upon the reargument, the court reversed itself and affirmed that defendant's conviction on the ground that he lacked standing to challenge the validity of the warrants or the lawfulness of the subsequent search and seizure (34 A.D.2d 3, 308 N.Y.S.2d 919). Thus, we have before us an appeal by the People as to six of the defendants and an appeal by the seventh defendant, Wheatman. Since the People's appeal poses the central issue to be decided--namely, the sufficiency of the District Attorney's affidavit and the admissibility of documents introduced into evidence--we consider that appeal first. ¹

The People's Appeal

In 1965, the District Attorney of New York County undertook an investigation of an alleged bid-rigging conspiracy to prevent competitive bidding on publicly advertised contracts for painting at city housing projects. Involved, among others, were three painting contractor firms, an individual representative from each of them and Wheatman, who was an official of the New York City Housing Authority. In brief, the People claim that the painting contractors, acting together and in concert, reached a decision in each instance as to who would win the various advertised contracts as well as the prices to be bid. To succeed in their scheme, they required inside information concerning Housing Authority estimates for bidding, and this, it was asserted, they obtained, for a price, from Wheatman and other officials who headed the Authority's paint sections.

During the course of the ensuing Grand Jury investigation, the Assistant District Attorney who was in charge of the inquiry, Mr. Joseph A. Phillips, applied to Supreme Court Jutice Fine for the issuance of warrants to search the offices of the three corporate defendants and eleven other contracting companies. He submitted in support of his application only his own affidavit, based in all important respects, according to him, upon testimony given before the Grand Jury. As indicated, it is the adequacy of this affidavit which is here in issue.

Mr. Phillips first stated what he personally knew about the contractors--that is, that they had been doing business with the Housing Authority for a period of years and that the Authority had their addresses on file. He then went on to aver that he 'has heard the sworn testimony of a number of witnesses before the * * * Grand Jury who have stated that they were parties to an agreement to rig bids at the City Housing Authority' and that such sworn testimony 'further reveals that each of the * * * contracting firms (listed in the affidavit) has been identified as a party to the agreement to rig bids'.

Phillips followed this with a summary of the testimony given by the witnesses which described the operation of the conspiracy: that Housing Authority employees prepared 'estimates of the man-days' require on certain projects; that such estimates were solely for the internal use of the Authority; that the parties to the bid-rigging agreement obtained those estimates and 'utilized the information' contained in them 'to submit false bids'; that Jerry Jerome, president of Jered Contracting Corp., was the person who obtained the estimate information and then passed copies of it on to the other parties to the agreement. Mr. Phillips concluded with the statement that, 'based upon the foregoing reliable information and upon my personal knowledge there is probable cause to believe that the estimate information has been wrongfully obtained from the Housing Authority, that it has been utilized by the parties to the agreement to submit false bids to the Housing Authority and that copies of the estimate information may be found in the files of each of the parties to the corrupt agreement at the addresses set forth (in the affidavit).'

On the strength of this affidavit, Judge Fine issued the warrants in question. They authorized the police to search the offices of the companies listed and to seize certain 'handwritten and typewritten copies of New York City Housing Authority painting estimate forms'. The search which followed turned up a number of forms, and the defendants, prior to trial, moved to suppress this evidence. The motion was denied on the ground that the affidavit 'spelled out in detail the circumstances from which a 'neutral and detached magistrate could independently determin that probable cause existed for the warrant to issue. " Upon the trial, those forms were offered and received in evidence on the People's case to corroborate the testimony given by the witnesses who acknowledged being parties to the bid-rigging agreement. Although the jury found the defendants guilty, a sharply divided Appellate Division reversed the judgments of conviction and ordered a new trial (33 A.D.2d 67, 304 N.Y.S.2d 904). It was the view of the majority that Phillips' affidavit failed to inform the judge who issued the warrant 'of the underlying circumstances which support the conclusion and belief of the affiant that his informant was credible and his information reliable (People v. Hendricks, 25 N.Y.2d (129), at p. 139, 303 N.Y.S.2d 33, 250 N.E.2d 323)' (33 A.D.2d, at p. 69 304 N.Y.S.2d, at p. 907). It was the view of the two dissenting justices that 'the search warrant in this case conforms not only to the general principles applicable to all search warrants but more particularly to the test set forth in Hendricks' (33 A.D.2d, at p. 73, 304 N.Y.S.2d, at p. 911).

We agree with Appellate Division dissenters that Phillips' affidavit was sufficient to establish probable cause and that, consequently, the warrants were valid, the search lawful and the evidence seized admissible. More specifically, the affidavit satisfied the test formulated by the Supreme Court (see United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723; Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306; Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637; Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723) and, of course, by our court. (See People v. Dumper, 28 N.Y.2d 296, 321 N.Y.S.2d 586, 270 N.E.2d 311; People v. Hendricks, 25 N.Y.2d 129, 303 N.Y.S.2d 33, 250 N.E.2d 323.) It is settled, as those cases indicate, that, where the affidavit is based upon hearsay and not solely on the personal knowledge of the affiant, it must, in order to satisfy the law's requirements, set forth facts which will enable a magistrate to judge for himself (1) the reliability (or credibility) of the informant and (2) the reliability of his information. Only then can a reviewing court be satisfied that the magistrate has discharged his 'constitutional duty' of reaching a neutral and independent determination that probable cause exists (Spinelli v. United States, 393 U.S. 410, 415, 89 S.Ct. 584, Supra), instead of serving merely as 'a rubber stamp' for police or prosecution. (Aguilar v. Texas, 378 U.S. 108, 111, 84 S.Ct. 1509, Supra.)

Since the Appellate Division declared that the affidavit submitted by the District Attorney 'fails to meet the two pronged test' (33 A.D.2d, at p. 69, 304 N.Y.S.2d, at p. 906), laid down in the decisions referred to, we treat, first, the question of the reliability of the so-called informants--the witnesses before the Grand Jury--whose 'information'--testimony in this case--Mr. Phillips relied upon and, second, the question whether 'the informant(s) had gained (their) information in a reliable way.' (Spinelli v. United States, 393 U.S., at p. 417, 89 S.Ct., at p. 589.)

Although the informant's reliability is frequently established by a statement from the affiant that the informant is known to him and has in the past furnished information leading to the arrest and conviction of others or by a separate objective checking of the informant's story (see People v. Hendricks, 25 N.Y.2d 129, 133--134, 303 N.Y.S.2d 33, 36--37, 250 N.E.2d 323, 325--326, Supra), there are, of course, other circumstances demonstrating his probable reliability. For instance, our court, as well as others, have noted that a magistrate may rely upon the fact that the information was given under oath, that the statements were against the informant's penal interest and that two or more informants tended to confirm the information which each gave. (See People v. Montague, 19 N.Y.2d 121, 125, 278 N.Y.S.2d 372, 376, 224 N.E.2d 873, 875; United States v. Harris,403 U.S. 573, 583--584, 91 S.Ct. 2075, Supra; Spinelli v. United States,393 U.S. 410, 423, 89 S.Ct. 584, Supra (per White, J., concurring); People v. Fein, 4 Cal.3d 747, 753, 94...