People v. Wheatman

• Decision Date: 10 February 1972
• Citation: 38 A.D.2d 801,328 N.Y.S.2d 1016
• Court: New York Supreme Court — Appellate Division
• Parties: The PEOPLE of the State of New York, Respondent, v. Nathan WHEATMAN et al., Defendants-Appellants. The PEOPLE of the State of New York, Respondent, v. Arnold MARCUS & Marcus Decorating Co., Inc., Defendants-Appellants.

Page 1016

328 N.Y.S.2d 1016

38 A.D.2d 801

The PEOPLE of the State of New York, Respondent, v. Nathan WHEATMAN et al., Defendants-Appellants.

The PEOPLE of the State of New York, Respondent, v. Arnold MARCUS & Marcus Decorating Co., Inc., Defendants-Appellants.

Supreme Court of New York, Appellate Division First Department.

Feb. 10, 1972.

I. Anolik, Shedler & Weiss, New York City, for Wheatman and others.

L. R. Friedman, New York City, for respondent.

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

On remand from the Court of Appeals, 29 N.Y.2d 337, 327 N.Y.S.2d 643, 277 N.E.2d 662, we have considered the points raised by the defendants, other than Wheatman, and find them without merit, and accordingly we unanimously affirm the judgments of the Supreme Court, New York County, rendered May 24, 1968, as to defendants Jerome, Spector, Jered and Dunrite, and the judgments of said court rendered June 20, 1968, as to defendants Marcus and Marcus Decorating. See People v. Wheatman, 33 A.D.2d 67, 304 N.Y.S.2d 904; People v. Wheatman, 34 A.D.2d 3, 308 N.Y.S.2d 919. Defendants' reliance on People v. Wyler and Hayes, 37 A.D.2d 375, 325 N.Y.S.2d 815, is misplaced. On the undisputed facts in the cited case, the witness was an accomplice as a matter of law. In the instant case there was a substantial factual issue relative to Feldman being an accomplice. The jury under the charge was enabled to find on the facts that Feldman was an accomplice or a subordinate employee acting under the direction of his employers.

All concur, with NUNEZ, J., concurring in the following memorandum:

The Trial Court should have instructed the jury that Sidney Feldman was an accomplice as a matter of law. Feldman admitted that on two separate occasions he gave money to Nolan, an employee of the New York City Housing Authority. He further admitted that he knew he was bribing Nolan. His proffered excuse, that he was following his employer's instructions is of no avail. However, while the court erred in failing to charge that Feldman was an accomplice (see People v. Wyler, et al., 37 A.D.2d 375, 325 N.Y.S.2d 815 (1st Dept.1971)), I concur in affirmance only because were his testimony deleted from the record, there would remain an overabundance of evidence establishing the defendants' guilt beyond a reasonable doubt. See People v. Pelow, 24 N.Y.2d 161, 299 N.Y.S.2d 185, 247 N.E.2d 150, 1967. The error committed must, therefore, be considered harmless. (Code Crim.Pro., §...