People v. Wheatman

• Decision Date: 08 June 1972
• Citation: 334 N.Y.S.2d 842,31 N.Y.2d 12
• Parties: , 286 N.E.2d 234 The PEOPLE of the State of New York, Respondent, v. Nathan WHEATMAN, Appellant. The PEOPLE of the State of New York, Respondent, v. Nathan WHEATMAN, Defendant, and Jerry Jerome et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 842

334 N.Y.S.2d 842

31 N.Y.2d 12, 286 N.E.2d 234

The PEOPLE of the State of New York, Respondent, v. Nathan WHEATMAN, Appellant.

The PEOPLE of the State of New York, Respondent, v. Nathan WHEATMAN, Defendant, and Jerry Jerome et al., Appellants.

Court of Appeals of New York.

June 8, 1972.

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

Irving Anolik, New York City, for Jerry Jerome and another, appellants.

Shedler & Weiss, New York City, for Samuel Spector and another, appellants.

Frederick H. Block, New York City, for Arnold Marcus and another, appellants.

Frank S. Hogan, Dist. Atty. (Lewis R. Friedman and Michael R. Juviler of counsel), for respondent.

FULD, Chief Judge.

In 1966, a New York County Grand Jury indicted the appellants--four individuals and three corporations--for conspiracy and bribery stemming from a bid-rigging arrangement to prevent competitive bidding on publicly advertised contracts for painting at city housing projects. Involved were painting contractors (the appellants Jerome, Spector and Marcus and their companies, the defendants Campbell, Goldman, Fishbein and Barron as well as Esrig, Graham and Metzger accomplices not indicted); employees of the New York City Housing Authority (the appellant Wheatman and the defendants Lowell and Nolan); and an official of a painting union (the defendant Rarback). Following a 10-week trial in the New York County Supreme Court, the appellants were convicted of the crimes of conspiracy (under former Penal Law, § 580), of conspiracy to prevent competitive bidding on public contracts (under § 581--a) and of bribery (under § 378). ¹

Upon appeal, the Appellate Division reversed the conviction of the appellants Jerome, Spector and Marcus (and their companies) and ordered a new trial; it was the court's conclusion that the sezure of certain documents, received in evidence upon the trial, was illegal because of the insufficiency of the affidavit on which search warrants were issued (33 A.D.2d 67, 304 N.Y.S.2d 904). The court affirmed appellant Wheatman's conviction, concluding that he lacked standing to challenge the validity of the warrants or to question the admissibility of the evidence (34 A.D.2d 3, 308 N.Y.S.2d 919 (on reargument)).

On the People's appeal to our court, we decided that the affidavit on which the search warrants had been issued was sufficient; accordingly, we reversed the Appellate Division's order and remitted the case to that court for consideration of the appellants' points on the merits (29 N.Y.2d 337, 327 N.Y.S.2d 643, 277 N.E.2d 662). On Wheatman's appeal, we withheld determination, believing it desirable to pass upon the merits of his case along with those of the other appellants if, on remand, the Appellate Division affirmed their convictions. It did affirm (38 A.D.2d 801, 328 N.Y.S.2d 1016), expressly stating that the arguments made by the six defendants before it were 'without merit'. We heard the appeals of the seven appellants during our April session.

The appellants seek a reversal of their convictions on a number of grounds, several of which we discuss below.

I. Evidence of Guilt

The People's case is based on the testimony of several accomplices and is firmly corroborated by copies of documents, prepared and used by the New York City Housing Authority, which were found in the offices of each of the appellant painting contractors. Since the testimony of the accomplices is somewhat repetitive, we limit ourselves to that of Esrig, for it was he who, in 1957, played a large part in initiating and developing the conspiracy. He, as well as other contractors, considered the prices paid by the Housing Authority too low to allow for substantial profits. Believing that, if they were to combine and control the bidding, their lot would be far better, he suggested to a number of his fellow craftsmen that they should get together and agree, before placing their bids for any particular job, who was to put in the successful bid. To 'police' the undertaking, he proposed that they employ the leader of the painting union, Rarback, pointing out that he could 'harass' any member of the combine who 'broke the line' and cause trouble to non-group members who bid and obtained a contract from the Authority. Rarback agreed to do the job for 2% Of the contract price. More particularly, he undertook to keep those not parties to the conspiracy 'out of the bidding' and, if any such contractor 'did bid and was the low bidder, he would harass' him by insisting on strict compliance with union rules and regulations and by assigning to his projects ship stewards who would see to it that 'the men did as little as possible.'

Esrig also spoke to Wheatman, the head of the Authority's paint section and his colleague, Lowell. Wheatman and Lowell, it was arranged, were to receive 1% Of the contract price in return for providing the conspirators with the Authority's confidential information, on the basis of which it prepared its own bid estimates. They also agreed to expedite payments to members of the group and to see to it that the Authority inspectors assigned to jobs being performed by such members would be 'friendly disposed' to them.

The inside information which Wheatman prepared, provided a 'complete breakdown' of the number of apartments to be painted, the number of 'man-days' required to paint them and the 'per diem cost' of the project. Upon receiving this information, Jerome--who was one of the leaders of the group between 1960 and 1965--had the task of revising the estimate figures slightly downward, of retyping such revised figures on Authority 'breakdown' or estimate sheets and of then distributing them to other members of the group as guidelines in placing their bids. With such information in their hands, the contractors were in a position to tailor their bids to the Authority's specifications.

Little is to be gained by further detailing the evidence given by the accomplices. As indicated, they described the operations of the conspiracy, the manner in which the bids were arranged and worked out, the bribes paid regularly to Wheatman, Lowell and Rarback, the constant harassment by inspectors--of both the Authority and of the union--when outsiders obtained jobs or when a group member fell behind in his bribe payments or bid independently and was awarded the contract. Their testimony is quite convincing, and no basis exists for the appellants' charge that they were 'unreliable.' In any event their veracity and credibility were for the jury to assess and, despite the sharp and lengthy cross-examination to which the witnesses were subjected, it is enough to say that the jury believed them.

Contrary to the appellants' contention, there was, as already mentioned, ample corroboration of the accomplices' testimony to satisfy the requirements of section 399 of the Code of Criminal Procedure (now CPL 60.22). The independent evidence, we have declared, is sufficient 'if it tends to connect the defendant with the commission of the crime in such a way as may reasonably satisfy the jury that the accomplice is telling the truth.' (People v. Dixon, 231 N.Y. 111, 116, 131 N.E. 752, 754; see, also, e.g., People v. Leo, 23 N.Y.2d 556, 560--561, 297 N.Y.S.2d 937, 939--941, 245 N.E.2d 705, 706--707; People v. Morhouse, 21 N.Y.2d 66, 74, 286 N.Y.S.2d 657, 662, 233 N.E.2d 705, 709.)

As we have already noted, Esrig testified that Wheatman had provided the conspirators with inside information consisting of bid estimates and specifications for the contracts. Corroboration for the testimony against Wheatman is found in his admission to one of the Authority's security officers, Donald Schatz. He testified that Wheatman told him that he had prepared five copies of bid estimates, instead of the three required for Authority use, and that he had given the two extra copies to Esrig and Campbell, two of the contractors in the conspiracy. ² Wheatman also told Schatz that he had lied to the grand jurors.

Indisputably corroborating the accomplices' testimony, not only against Wheatman but against the appellant contractors as well, was the evidence that the police had found copies of the bid estimates and handwritten lists containing the Authority's estaimate figures in the office of each of the appellant contractors. More specifically, the copies of the documents found in the appellant contractors' offices contained Revised estimate figures, written in pencil, which were designed to make certain that the bids filed did not too closely duplicate the estimates prepared by the Authority. Moreover, the papers which Esrig received from Jerome confirmed and corroborated the former's testimony that it was the appellant Jerome who had retyped the documents and revised the estimate figures: the peculiar sort of script on the sheet indicated that it was from a typewriter in Jerome's office.

In short, comparison of the documents, introduced in evidence and submitted to the jury for inspection, demonstrates that Jerome obtained carbon copies of the bid estimates which Wheatman had prepared, that he passed the information he received, along with his revised estimates, on to the other appellants who relied upon such information in filing their bids.

II. Court's Charge as to Feldman's Status

Graham, one of the accomplices not indicted, had become a member of the conspiracy in 1960. Sidney Feldman, Who was Graham's brother-in-law, joined his firm in June of 1961. He testified that, just 'being broken into the painting business', he drove Graham, and the latter's partner Barron, to several meetings attended by other group members. Prior to going to one of these meetings, he heard Graham 'object' to Barron's insistence that their firm had to join 'the group'; Graham said, according to Feldman, that '(h)e was doing business (and) did not need this group.' Feldman also testified that he once saw Graham pay money to the defendant Nolan, the...