People v. Wisch

• Decision Date: 22 January 1969
• Citation: 58 Misc.2d 766,296 N.Y.S.2d 882
• Parties: the PEOPLE of the State of New York, Plaintiff, v. Irving R. WISCH et al., Defendants. The PEOPLE of the State of New York, Plaintiff, v. Jules KOTCHER et al., Defendants.
• Court: New York Supreme Court

Page 882

296 N.Y.S.2d 882

58 Misc.2d 766

the PEOPLE of the State of New York, Plaintiff, v. Irving R. WISCH et al., Defendants.

The PEOPLE of the State of New York, Plaintiff, v. Jules KOTCHER et al., Defendants.

Supreme Court, Trial Term, New York County, Part XXXIII.

Jan. 22, 1969.

Frank S. Hogan, Dist. Atty., Joseph Phillips, Asst. Dist. Atty., for the People.

Richard H. Kuh, New York City, for defendant Wisch.

Rosenman, Colin, Kaye, Petschek, Freund & Emil, New York City, by Gerald Walpin, and Joseph Zuckerman, New York City, of counsel for defendants Kelly, De Bratto, Ferrar, Nargo, Keller & De Lorenzo.

Thomas A. Bruno, Staten Island, for defendants Joseph Weissglass, Allan Weissglass, Joseph Land and Weissglass Gold Seal Dairy Corp.

GEORGE M. CARNEY, Justice.

All of the 57 defendants, named in the two indictments above, other than Allan Miller and Queensboro Farms Products Inc. demur to the indictment under which they are charged and seek its dismissal.

The two indictments are drawn in substantially the same way, other than the description of certain defendants and their functions. Each indictment contains twenty-eight counts. In each indictment, Count One charges a violation of Sections 340 and 341 of the General Business Law (Donnelly Act); Count Two, Conspiracy to commit a Felony, to wit, Extortion; Count Three, Attempted Extortion; Counts Four to Eight inclusive, extortion; Count Nine, Conspiracy to Commit Coercion and Counts Ten to Twenty-eight inclusive, Coercion. Joint memoranda of law were submitted and the demurrers argued together at great length. The same contentions are advanced as to each demurrer. The Court is therefore writing this joint decision disposing of all of the contentions raised in both demurrers.

The defendants' first contention is that the First Count is demurrable because nowhere therein have the People alleged that the alleged restraints of trade were unreasonable in purpose or effect. In other words, the defendants contend that the policy has been established in New York State that in every case charging a violation of sections 340 and 341 of the General Business Law, irrespective of the facts and the methods of accomplishing the alleged restraint of trade, the test of reasonableness must be applied; and that therefore it is incumbent upon the People not only to allege in the indictment the unreasonableness of the restraint, but also to prove it at the trial. The District Attorney disputes both contentions asserted by the defendants.

An examination of sections 340 and 341 of the General Business Law indicates that there is no language in the statute itself which would in and of itself require the pleading that defendants consider essential. The law is pretty well established that a count of an indictment that follows the language of the statute defining the crime is sufficient (People v. Finkelstein, 9 N.Y.2d 342, 214 N.Y.S.2d 363, 174 N.E.2d 470; People v. Farson, 244 N.Y. 413, 155 N.E. 724; Phelps v. People, 72 N.Y. 334).

The Court has carefully examined the claim of defendants that in every case tried under New York law, where the defendant is charged with a violation of sections 340 and 341 of the General Business Law, a test of reasonableness must be applied to determine whether or not the defendant has violated the statute. There have been some civil cases which use broad language in asserting a test of reasonableness. There may be such a test applicable in certain type cases and under certain factual conditions. This Court is convinced, however, that where in a criminal case the main thrust of the People's charge is that the defendants have combined to unlawfully fix prices on a horizontal level in restraint of trade, there is not only no requirement that the unreasonableness of the price be pleaded, but there is no burden on the People at the trial, to prove the unreasonableness of the price fixed. In fact, the price fixed might be a reasonable one, it might be higher or lower than what it should be, yet there would be a violation of sections 340 and 341 of the General Business Law if the price was fixed on a horizontal level as the result of the unlawful combination and resulted in restraint of trade. Whether the price was reasonable, low or high is immaterial (People v. Milk Exchange, 145 N.Y. 267, 39 N.E. 1062, 27 L.R.A. 437; People v. Sheldon, 139 N.Y. 251, 34 N.E. 785, 23 L.R.A. 221; United States v. Sealy Inc., 388 U.S. 350, 357, 87 S.Ct. 1847, 18 L.Ed.2d 1238; United States v. Trenton Potteries Co., 273 U.S. 392, 396--398, 398, 47 S.Ct. 377, 71 L.Ed. 700; United States v. Socony-Vacuum Oil Co., Inc., 310 U.S. 150, 212--213, 60 S.Ct. 811, 84 L.Ed. 1129; Northern Pacific Ry. Co. v. United States, 356 U.S. 1, 5, 78 S.Ct. 514, 2 L.Ed.2d 545). Nor do the motives, intent or good faith of the parties to the combination which results in unlawful restraint of trade save it from the condemnation of the statute (Kellogg v. Sowerby, 190 N.Y. 370, 375, 83 N.E. 47, 48; People v. Sheldon, 139 N.Y. 251, 34 N.E. 785, 23 L.R.A. 221; People v. Morrison, 98 Misc. 555, 557, 164 N.Y.S. 712, 713). For the reasons above indicated, this contention of the defendants is rejected.

The defendants contend that as to Counts Two to Eight inclusive, the People have failed to allege facts constituting the crimes of Conspiracy to Commit a Felony, to wit, Extortion; Attempted Extortion and Extortion, because the counts fail to allege the obtaining of the kind of property which may be the subject of Extortion under section 850 of the Penal Law. This claim is based upon the defendants' contention that the only kind of property which may be the subject of an Extortion or Attempted Extortion is tangible property. The Court does not agree with this contention and finds that property has a much broader meaning than that contended for by the defendants and that intangible property may be the subject of Extortion. A milk route which has a pecuniary value is property and may be the subject of an extortion in the Court's opinion (People ex rel. Short v. Warden of City Prison, 145 App.Div. 861, 130 N.Y.S. 698, affd. 206 N.Y. 632, 99 N.E. 1116; People v. Barondess, 133 N.Y. 649, 31 N.E. 240, reversing on dissenting opinion below, 61 Hun 571, 589, 16 N.Y.S. 436; Clements, Criminal Law and Procedure, p. 545).

The defendants also assert as to Counts Two to Twenty-eight that the threats alleged in the indictment are not the kind specified in sections 850, 851 and 530 of the Penal Law and that the course of conduct alleged is not within the fair intendment of those sections. The Court likewise finds this contention by the defendants to be unfounded. The counts charge that defendants threatened to do an unlawful injury to property. This is substantially the language of the statutes. It is the District Attorney's contention that the threats employed were threats to small milk dealers that their supply of milk would be cut off, that they would have work stoppages and they would be put out of business. Threats of this type are sufficient to support a charge of extortion and also coercion (People v. Dioguardi, 8 N.Y.2d 260, 268, 203 N.Y.S.2d 870, 877, 168 N.E.2d 683, 689; People v. Weinseimer, 117 App.Div. 603, 608, 613, 615, 102 N.Y.S. 579, 588, affd. 190 N.Y. 537, 83 N.E. 1129; People v. Barondess, supra; People v. Hughes, 137 N.Y. 29, 37, 39, 32 N.E. 1105, 1108).

The defendants contend that the facts alleged in Counts Two to Twenty-eight do not constitute the crimes charged. Each of these Counts follows the language of the respective statute defining the crime charged and hence is sufficient. (People v. Finkelstein, 9 N.Y.2d 342, 214 N.Y.S.2d 363, 174 N.E.2d 470, supra; People v. Farson, 244 N.Y. 413, 155 N.E. 724, supra; Phelps v. People, 72 N.Y. 334, supra.) The defendants further claim that 'the subject matter of such Counts is solely cognizable under Sections 340 and 341 of the General Business Law'. In other words, the defendants claim that all these Counts charging Conspiracy as a Felony, Attempted Extortion, Extortion, Conspiracy as a Misdemeanor, and Coercion are merged into and must be treated as a part of Count One, which charges a violation of Sections 340 and 341 of the General Business Law, a Misdemeanor. The defendants cite no legal authority for this proposition. They apparently claim that, since the acts which form the bases for the charges contained in these 27 Counts were allegedly committed pursuant to the alleged unlawful combination charged in Count One, they can only be charged with a violation of Count One. Where the same facts may constitute more than one crime, the People may properly charge all the crimes in separate counts in one indictment. This is an everyday occurrence in the prosecution of crimes in New York (Code Crim. Pro. § 279). The particular combination of charges contained in this indictment has in the past been employed without criticism (People v. DeGrandis, 12 N.Y.2d 812, 236 N.Y.S.2d 63, 187 N.E.2d 130). The Court finds no merit in the contentions advanced by the defendants.

The defendants claim that the acts with which they are charged in this indictment are pre-empted from State jurisdiction by virtue of the National Labor Relations Act and that hence the Grand Jury had no authority to inquire into the crimes charged. It must be remembered that the defendants are charged with crimes including threats of injury to property. This is not a civil action seeking a civil remedy. This is a prosecution by the People, under the police power of the State, seeking to enforce its criminal laws. There is no labor dispute involved in this indictment. Nor is there any indication of any labor dispute between the defendants. The indictment in effect alleges that the defendants entered into a corrupt agreement to violate the criminal laws of this state and that pursuant to that agreement the defendants engaged in crimes in violation of Sections 340 and 341 of...