State v. Goodman

• Decision Date: 26 May 1952
• Docket Number: No. A--114,A--114
• Citation: 9 N.J. 569,89 A.2d 243
• Parties: STATE v. GOODMAN et al.
• Court: New Jersey Supreme Court

Page 569

9 N.J. 569

89 A.2d 243

STATE v. GOODMAN et al.

No. A--114.

Supreme Court of New Jersey.

Argued April 21, 1952.

Decided May 26, 1952.

John E. Toolan, Perth Amboy, argued the cause for appellant Isadore Eisenstein.

Samuel I. Kessler, Newark, argued the cause for appellant Richard F. Powell.

Max Mehler, Newark, argued the cause for appellant Ira Goodman (John A. Matthews, attorney).

John A. Laird, Newark, argued the cause for appellant Edward T. Miller.

Edward Gaulkin, Newark, Essex County Pros., argued the cause for State.

The opinion of the court was delivered by

JACOBS, J.

This is an appeal, certified to this court on its own motion, from judgments of conviction for conspiracy to extort, entered in the Essex County Court.

The defendant Ira Goodman is Deputy Director of the Department of Public Affairs of the City of Newark. The Newark Department of Health is within the jurisdiction of the Department of Public Affairs and Goodman has exercised supervisory power over it since his appointment in May, 1949. The defendant Richard F. Powell is a sanitary inspector in the Food and Drug Division of the Department of Health which is entrusted, among other matters, with the enforcement of regulations governing the importation and distribution of milk in Newark. The defendant Isadore Eisenstein, a friend of Powell, is in the milk business and the defendant Edward T. Miller, a friend of Eisenstein, is an attorney with law offices in Newark. On Friday, May 26, 1950 a letter was sent by the Department of Health to Schoharie County Coop. Dairies, Inc. advising that, pursuant to hearing, it was being removed from the list of milk companies approved for shipment of milk to Newark. On Monday, May 29, 1950 representatives of Schoharie, on recommendation by Eisenstein, visited Miller's office, retained him to represent Schoharie and paid him a fee of $7,500, of which he later remitted $7,000 to Eisenstein. On that day and following a call from Miller, Goodman ordered that Schoharie's approval be reinstated and called Powell to advise Schoharie of the reinstatement. On June 7, 1950 a letter was sent to Queensboro Farm Products, Inc. advising that, pursuant to hearing, its Steamburg plant was being removed from the approved list. On June 8, 1950 representatives of Queensboro visited Miller's office, retained him to represent Queensboro's Steamburg, Canton, and Brier Hill plants and paid him $5,000 on an agreed $10,000 fee. Miller called Goodman and Queensboro was reinstated. Queensboro paid the additional $5,000 to Miller on June 13 and Miller remitted $9,075 from the $10,000 to Eisenstein. On June 20, 1950 a hearing was held with respect to Cooperdale Dairy Company and it was announced that the company's approval would be withdrawn. After the hearing a representative of the company retained Miller and paid him $7,500 of which he expected to remit about $7,000 to Eisenstein. No written communication advising Cooperdale of its removal from the approved list was ever sent by the Department of Health.

During the summer of 1950 the Essex County Prosecutor conducted an investigation to determine whether any crimes had been committed in connection with the aforementioned payments by the milk dealers and in the course thereof Goodman, Powell, Eisenstein and Miller gave voluntary testimony. See State v. Eisenstein, 16 N.J.Super. 8, 83 A.2d 777 (App.Div.1951) affirmed 9 N.J. 347, 88 A.2d 366 (1952). The payments to Miller and his remissions to Eisenstein were not disputed but there were denials that Goodman and Powell or either of them received or were to receive any part thereof. However, in March, 1951 the Essex County grand jury returned an indictment in three counts against Goodman, Powell Eisenstein and Miller which charged, in count two, that they had conspired to commit statutory extortion (R.S. 2:127--1, N.J.S.A.; R.S. 2:119--1, N.J.S.A.) in that they had corruptly agreed that sums of money would be obtained from milk dealers for reinstatement of their approvals as dealers, and that Miller and Eisenstein would take and receive a portion thereof and Goodman and Powell would take and receive a portion thereof. After a lengthy trial all of the defendants were convicted under count two and they have duly appealed. Their main contention is that the State's evidence was insufficient to sustain the judgments of conviction and that their motions for acquittal at the close of the State's case should have been granted by the trial court. This necessitates a summary of pertinent evidence introduced and relied upon by the State and which the jury was at liberty to accept as credible. See State v. Fox, 12 N.J.Super. 132, 135, 79 A.2d 76 (App.Div.1951).

When Goodman was first designated as Deputy Director, Dr. Charles V. Craster was health officer in charge of the Department of Health, Joseph E. Connolly was assistant health officer in charge of the Food and Drug Division, and David E. Morgan was acting chief inspector in the Food and Drug Division. Morgan generally assisted Connolly and was superior in authority to the inspectors in the Division including Inspector Powell. In January, 1950 Goodman advised Connolly that thereafter all new applications for approval were to be sent to the office of the Director of the Department of Public Affairs and later that month Goodman told Connolly that Powell was to become a free agent and be permitted to go and come as he pleased. In the meantime and thereafter Goodman and Powell had many conferences together. In January, 1950 Eisenstein called Morgan and invited him to his home, saying that Powell would be there; Morgan declined the invitation. In March, 1950 Goodman called Morgan, who was then at home recuperating from illness, inquired about his health, and asked him to telephone when he returned to work. On March 20, 1950 Morgan returned to work, telephoned Goodman and they had lunch together. Morgan testified that at that time Goodman asked him 'how can we get some money' and when Morgan inquired as to what he meant he said 'how about the inspectors that go out and inspect the milk plants and the dairies putting pressure on some.' Morgan told him it was a 'crazy idea' and he 'wouldn't do it.' During the conversation Goodman asked Morgan who Powell was and whether he knew him. Morgan testified further that after the March 20 luncheon Connolly told him that Goodman had called saying that Powell 'was going to take over and advise him' and thereafter he was no longer consulted by Connolly as to matters involving the assignment of inspectors and the exclusion of milk concerns from the lists of approved companies. Connolly testified that in March, 1950 Powell told him that there had been a meeting during which the feeling was expressed that there should be more rigid inspection schedules and he would be Connolly's 'adviser and consultant' and that Goodman told him he was to get 'tougher' on the matter of cleanliness in milk dairies and 'work with Mr. Powell on it.' At about that time Goodman gave Connolly a slip bearing the names of four milk companies and told him to take it up with Powell--'he knows what to do with it.' Later Powell gave him another list bearing the names of 18 companies including Schoharie, Queensboro and Cooperdale, telling him to keep it in his pocket 'so that nobody would know where it was.' This list bore, alongside each company's name, the names of its owners and purchasers, the number of dairy farms it controlled and, along the margin in Powell's handwriting, the name of the person who was to inspect the company. Ten companies were to be inspected by Powell, six by Inspector Roman and two by Inspector Manning; at later dates most of these companies were excluded from the approved lists.

Schoharie is a cooperative organization which sells its entire output, as do Bovina Center Creamery and Guernsey Breeders Association, to Middletown Milk & Cream Co. Schoharie was inspected by Roman from May 11 to May 16 and on May 22 Connolly notified Schoharie that a hearing would be held on May 24. Notices of hearing were also sent to Bovina and Guernsey. Middletown retained David T. Wilentz, an attorney-at-law with offices at Perth Amboy, to represent Schoharie, Bovina and Guernsey. Mr. Wilentz telephoned the Director of the Department of Public Affairs for an adjournment and was referred to Goodman. There was some difficulty about an adjournment and Mr. Wilentz told Goodman he would stop in his office on his way to the hearing. He did so and at that time he asked Goodman to see if decision could not be reserved 'until I see what there is to it and perhaps I can adjust it.' Goodman said he would try to have decision reserved and he did tell Connolly to hold his decision in abeyance. At the hearing Dr. Shaul of Schoharie pointed out that his organization had been approved for approximately ten years and was ready to meet all regulations of the Department. Mr. Wilentz expressed the view that there was not 'anything too serious here that couldn't be corrected' and Connolly said 'In most instances that is true.' Roman agreed that 'in a short period of time' the company could get the objectionable items corrected. At the close of the hearing Connolly said 'I'll hold the decision for a while--then contact you.' Mr. Wilentz again stopped in at Goodman's office and said 'I would like to get a chance to straighten this out and before there is any official action taken I would like to be notified and give me an opportunity.' Nevertheless, Goodman directed Connolly to exclude Schoharie, on May 26 a letter of exclusion was mailed, and on the same day Middletown was advised of the exclusion by telephone.

Prior to Schoharie's exclusion Eisenstein called Mr. Mather, president of Middletown and they made an appointment to meet on the morning of Friday, May 26. They met at Eisenstein's office and Eisenstein told him that 'You are in trouble at Newark.' Eisenstein had...