People v. Wheatman
| Decision Date | 06 November 1969 |
| Citation | 33 A.D.2d 67,304 N.Y.S.2d 904 |
| Parties | The PEOPLE of the State of New York, Respondent, v. Nathan WHEATMAN, Jerry Jerome, Samuel Spector, Jered Contracting Co., Inc., Dunrite Painting Co., Inc., Defendants-Appellants. The PEOPLE of the State of New York, Respondent, v. Arnold MARCUS and Marcus Decorating Co., Inc., Defendants-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Irving Anolik, New York City, for appellant Nathan Wheatman.
Irving Anolik and Rudolph Ebenfeld, New York City, of counsel, for appellants Jerry Jerome and Jered Contracting Corp.
Benjamin Shedler, New York City, of counsel (Allen H. Weiss, New York City, with him on the brief, Shedler & Weiss, New York City, attorneys), for appellants Samuel Spector and Dunrite Painting Co., Inc.
Frederick H. Block, New York City, for defendants-appellants Arnold Marcus and Marcus Decorating Co., Inc.
Joseph A. Phillips, New York City, of counsel (Michael R. Juviler and Alan Scribner, New York City, with him on the brief; Frank S. Hogan, Dist. Atty.), for respondent.
Before EAGER, J.P., CAPOZZOLI, TILZER, NUNEZ and McNALLY, JJ.
Judgments entered May 24, 1968 and June 20, 1968 convicting defendants-appellants of conspiracy and bribery reversed on the law, and a new trial ordered. The search warrant issued June 15, 1965 is vacated and the evidence seized upon its execution is suppressed.
Defendants' motion to vacate the search warrant and to suppress the records seized in the execution thereof predicated upon the insufficiency of the affidavit of Assistant District Attorney Joseph A. Phillips should have been granted. The documents seized and introduced at the trial were vital to the People's case for, except as to defendant Wheatman they provided the necessary corroboration of the incriminating testimony given by co-conspirators which, standing alone, would be insufficient to convict.
The Phillips' affidavit recites that there was a bid-rigging arrangement on work for the New York City Housing Authority among a number of painting contractors, that in connection therewith the contractors obtained estimates of the man days that it should take to paint certain portions of Authority projects; that these estimates were solely for the internal use of the Authority and that parties to the bid-rigging agreement obtained copies thereof and utilized them to submit false bids to the Authority. All of the foregoing is said to have been testified to by a number of witnesses before the grand jury, but the affidavit is barren of any identification of the alleged witnesses, of the substance of the testimony claimed as support for affiant's conclusion and of anything to indicate the basis of the witnesses' testimony or to demonstrate the reliability of such testimony. The affidavit concludes:
'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 above.'
Affiant's conclusion as to what witnesses said before the grand jury, without setting forth any of the testimony on which his conclusion rests, is not sufficient. Where hearsay is relied on, it must be shown to come from a reliable source and must in and of itself be able to justify a finding of probable cause. People v. Hendricks, 25 N.Y.2d 129, 303 N.Y.S.2d 33, 250 N.E.2d 323; People v. Malinsky, 15 N.Y.2d 86, 93, 94, 262 N.Y.S.2d 65, 72, 73, 209 N.E.2d 694, 699, 700; People v. McCall, 17 N.Y.2d 152, 269 N.Y.S.2d 396, 216 N.E.2d 570. He completely fails to state the basis, nature or content of his claimed 'personal knowledge'.
The affidavit at bar fails to meet the two pronged test laid down in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 and more recently reaffirmed in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 and most recently reaffirmed by the Court of Appeals in People v. Hendricks, 25 N.Y.2d 129, 303 N.Y.S.2d 33, 250 N.E.2d 323, Supra. In short that test requires that the affidavit show (1) whether the informant is in fact reliable, and (2) whether the underlying circumstances as to how the informant came by his information demonstrates sufficient probability of credibility to allow the search of the premises or person in question.
While we should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a commonsense manner (United States v. Ventresca, 380 U.S. 102, 85 S.Ct. 741, 13 L.Ed.2d 684), the law is clear that the Magistrate must be informed 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, Supra, 25 N.Y.S.2d at p. 139, 303 N.Y.S.2d at p. 39, 250 N.E.2d at p. 327).
In view of our ruling on the invalidity of the search warrant, we did not reach and, therefore, did not consider the other points raised by appellants. For the foregoing reasons, the judgments of conviction are reversed, on the law, and a new trial ordered as to each appellant.
Judgments reversed, on the law, and a new trial ordered as to each appellant. The search warrant issued June 15, 1965, is vacated and the evidence seized upon its execution is suppressed.
I dissent and vote to affirm.
The motion to vacate the search warrant is grounded solely on lack of probable cause. No issue of fact is involved. hence, no hearing was necessary. See sec. 813-c, Code of Crim. Proc.
The affidavit in support of the warrant which has been declared invalid is as follows:
'Joseph A. Phillips, being duly sworn, deposed and says:
That I am the Assistant District Attorney in New York County charged with the responsibility of investigating to determine whether the crimes of bid rigging, bribery of public officers, bribery of labor representatives, extortion, assault, grand larceny and conspiracies to commit each of those crimes have been committed in relation to public contracts with the New York City Housing Authority; and as such I am familiar with the proceedings had heretofore in this investigation.
That this affidavit is made in support of this office's request for court orders authorizing the search of the offices (of) fourteen separate painting contractors.
That the contractors and their addresses are as follows:
That your deponent has examined the New York City Housing Authority's bid records for painting contracts and each of the above-named contractors or their predecessors has been doing business with the Authority for a period of years.
That the Authority's bid records also reflect the addresses of each of the itemized contractors.
That the Fourth April 1965 and the Third March 1965 Grand Juries have been hearing testimony in relation to the above-mentioned crime since March of this year.
That officers or owners of each of the above-mentioned contracting firms have been called before the Grand Jury and requested to sign waivers of immunity pursuant to Section 103b of the General Municipal Law.
That with the exception of D.C. Decorating Corp. and Smith Decorating Corp. a principal of each of the contracting firms has refused to sign a waiver and each has had large painting contracts cancelled and has been disqualified from doing further business with the City.
That, in addition, Eli Smith the President of Smith Decorating Corp. has been indicted by the Grand Jury for his failure to continue testifying under his waiver of immunity.
That your deponent has been present at the proceedings of the Fourth April Grand Jury.
That your deponent has heard the sworn testimony of a number of witnesses before the Fourth April Grand Jury who have stated that they were parties to an agreement to rig bids at the City Housing Authority.
That the sworn testimony before that Jury further reveals that each of the above-named contracting firms has been identified as a party to the agreement to rig bids at the Housing Authority.
That the sworn testimony before the Grand Jury also reflects that the Housing Authority has two employees who prepare estimates of the man-days that it should take to paint certain portions of Housing Authority projects.
That the testimony further shows that the man-day estimates prepared are solely for the internal use of the Housing Authority in preparing its various financial statements and budgets.
That a sample of the Housing Authority man-day estimate is annexed hereto as an exhibit.
That the sworn testimony before the grand jury shows further that the parties to the bid rigging agreement were able to obtain the Housing Authority's estimate and that the parties utilized the information in the Housing Authority's estimate information to submit false bids to the Housing Authority.
That the sworn testimony of a number of witnesses stated that Jerry Jerome, who is a convicted felon and the President of Jered Contracting Corp., was the individual who obtained the Housing Authority estimate information and passed copies of that information on to the other parties to the agreement.
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 above.
WHEREFORE, I respectfully request that the court...
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People v. Wheatman
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