Brief for the Respondent in Opposition — Marcus v. New York

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7

O Ix THR OCi 27 1972

Supreme Court of the Pt eae

October Term, 1972

No. 72-370

ARNOLD MARCUS, MARCUS DECORATING CO.

INC., JERRY JEROME, JERED CONTRACTING

CORP. and NATHAN WHEATMAN,

Petitioners,

against

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR CERTIORARI

Faark 8. Hocax

District Attorney

New York County

Attorney for Respondent

155 Leonard Street

New York, New York 10013

(212) 732-7300

TABLE OF CONTENTS

PAGE

Preliminary Statement 1

Juriedieti 2

Statement of the Case .... 2

The Crime and Charges 2

Proceedings on the First Appeal 4

Proceedings on the Second Appeal 6

before the grand jury, established probable cause 7

TABLE OF AUTHORITIES

Cases:

Aguilar v. Texas, 378 U.S. 108 (1965) 8,9

Alderman v. United States, 394 U.S. 213 (1969) 21

California v. Green, 399 U.S. 149 (1970) 10

Coolidge v. New Hampshire, 403 U.S. 443 (1971) 16, 18

Jaben v. United States, 381 U.S. 214 (1965) 18

Jones v. United States, 362 U.S. 257 (1960) ..... 18

Louie v. United States, 426 F.2d 1398 (9th Cir. —

cert. denied 400 U.S. 918 (1970) 11

MeCray v. Illinois, 386 U.S. 300 (1967) 17

—

Pact

McCreary v. Sigler, 406 F.2d 1264 (8th Cir. anineitaes

denied 395 U.S. 984 (1969) ........... aie ul

Mancusi v. DeForte, 392 U.S. 364 (1968) .. ancontea ae

People v. Fein, 4 Cal. 3rd 747, 94 Cal. Rptr. 607, 484

P.2d 583 (1971) 1

People v. Hendricks, 25 N.Y.2d 129, 303 N.Y.S.2d 33,

250 N.E.2d 323 (1970) 92

People v. Montague, 19 N.Y.24 121, 278 N.Y.8.24 372,

224 N.E.2d 873 (1967), cert. denied 389 U.S. 862

(1970) ll

People v. Munger, 24 N.¥.2d 445, 301 N.Y.S.2d 39, 248

N.E.2d 882 (1969) . M4

People v. Sheridan, 2 Cal. App. 3d 483, 82 Cal. Rptr.

695 (1969) . B

People v. Tomasello, 21 N.Y.2d 143, 287 N.Y.S.24 1,

234 N.E.2d 190 (1968) ....... 10

People v. Wheatman, 33 A.D.24 65, 304 N.Y.S.2d 904

Cet Mera, TOG nnn nnnnncecnnssncsarenncnscssnssnnrenccs H

People v. Wheatman, 33 A.D.2d 1107 (ist Dept. 1970) 5

People v. Wheatman, 34 A.D.2d 3, 308 N.Y.S.2d 91°

Oe TI, TIF escesucssccasecnsncrnseenncmnnnsnnesasnnsntenessneancanesans F

People v. Wheatman, 29 N.Y.2d 337, 327 N.Y.S.2d 643,

gg tL, 6,2

People v. Wheatman, 38 A.D.2d 801, 328 N.Y.S.2d 1016

(1st Dept. 1972), aff’d 31 N.Y.2d 12, 334 N.Y.S.2d

842 (1972)

Shadwick v. City of Tampa, 407 U.S. 345 (1972) ......... 16, 1

Skelton v. Superior Court, 1 Cal. 3rd 144, 81 Cal. Rptr.

613, 460 P.2d 485 (1969) ............ a

Spinelli v. United States, 393 U.S. 410 (1969) 8, 9, 10, 13

14, 16, 18,2

State v. Burnett, 42 N.J. 377, 201 A.2d 39 (1964) ....._ I

COPY BOUL

SN SS | OO

United States v. Brown, 455 F.2d 1201 (9th Cir. 1972) 11

United States v. DeSisto, 329 F.2d 929 (2d Cir. 1964) 10

United States v. Harris, 402 U.S. 573 (1971) .. 10, 11, 16

United States v. Lewis, 392 F.2d 377 (2d Cir. 1968) .. 16

United States v. Ventresea, 380 U.S. 102 (1965) 20

United States v. Viggiano, 433 F.2d 716 (2d Cir. 1970),

cert. denied 401 U.S. 938 (1970) 0... as

Statutes:

kA | nnn cacuuaahahe Ce

WY. CRTs GODIO ..nnnancnccnssnessecsveeneestreveenscsvsevoenees iasieniaien 14

SE, Ci GD ican ssccesnesssseerecerensmrererereorsormemrereeoe «AD

WY. CRTs GROOBD nanan nnnsseesnessecesssnsenesevcsnoenvssnennsen .

N.Y. CPL §190.40 ...... no Ces frees aoe Si

N.Y. Former Penal Law §378 2... “yr

N.Y. Former Penal Law §580 ......... eocmacaiin 2

N.Y. Former Penal Law §581-a 2

N.Y. Former Code Crim. Proc. §249 Dihiesdiiiaadis 14

N.Y. Former Code Crim. Proc. §§255-7 0.00000... B

N.Y. Former Code Crim. Proc. §399 0.0.0.0... 1%

N.Y. Former Code Crim. Proc. §619-c ................... 10

N.Y. Gen. Munic. Law §108 ........ piihctebiiniahiabadiedsadiisiiantiid 12

Gh TTA, GRIT aaiiisssesnsesnnsoncsnssenssvsconsenesnnsonsonecnssanecs 2

Other Authorities:

Note, Inaccurate Search Warrant Affidavits as a

Ground for Suppressing Evidence, 84 Harv. L.

. Rev. 825 (1971) tafe Pp Cc RO ONES 11

Wigmore, Evidence (3rd Ed. 1940) _.....-.ccccsccvccseeen 10

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>

Arwotp Marcus, Marcus Decoratine Co., Inc., JERRY

Jenome, Jenep Cowtractixe Corp. and NatHan WHEaTMAN,

Petitioners,

against

Tue Peorte or tae State or New York,

Respondent.

On Petition for Writ of Certiorari to the Court of

Appeals of the State of New York

a

BRIEF FOR RESPONDENT IN OPPOSITION

TO PETITION FOR CERTIORARI

Preliminary Statement

Petitioners seek certiorari to review a judgment of

the Court of Appeals of the State of New York, rendered

Jane 8, 1972, which unanimously affirmed judgments of the

Supreme Court of the State of New York, Appellate Divi-

sion, First Judicial Department, rendered February 10,

1972, which unanimously affirmed judgments of the Su-

preme Court of the State of New York, County of New

2

York, rendered May 24, 1968 and June 20, 1968, convicti

the petitioners, after a joint jury trial, of one count.

conspiracy (N.Y. Former Penal Law §580), six counts

conspiracy to prevent competitive bidding on public «&

tracts (N.Y. Former Penal Law §581-a), and bribery (N.

Former Penal Law §378).

Jerome was sentenced as a second felony offender

the bribery count to five to six years in prison, and his eo

pany, Jered, was fined $20,000. Marcus and his compa

received a suspended sentence on all counts. Wheatm

was sentenced to a term of from two to four years in pris

Jurisdiction

The petition for certiorari was filed on or about Septe

ber 1, 1972. The petitioners invoke the Court’s certior

jurisdiction pursuant to 28 U.S.C. §1257(3).

Statement of the Case

The Crime and Charges

A New York County Grand Jury filed a fifty-count

dictment charging Nathan Wheatman, then the head of

paint section of the New York City Housing Author

(hereinafter referred to as NYCHA), together with s

eral painting contractors doing business with NYCHA,

cluding Jerry Jerome, Samuel Spector, Arnold Marcus :

their companies, other NYCHA officials, and a leader of

painters’ union with the crimes of conspiracy and brib

In essence the indictment charged that working togetl

the defendants had organized a scheme in which a grouy

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painting contractors banded together to prevent competi-

tive bidding on contracts for painting at NYCHA projects.

The group decided who would win the contracts advertised

for public bidding, and the prices that would be bid. Jerry

Jerome, Samuel Spector and Arnold Marcus were each, at

one time, leaders of the group. They, their companies and

four other individuals and their companies were named as

defendants. To aid the effectiveness of the scheme, the

group relied on Nathan Wheatman, and defendants Philip

Lowell and John Nolan, all officials of the NYCHA. Wheat-

man and Lowell headed the paint sections of the NYCHA

and provided inside information on Housing Authority es-

timates for bidding, expedited payments on requisitions

and employed NYCHA inspectors who were to be lenient

on group members and severe on non-group contractors.

Wheatman and Lowell received as a bribe one percent of

the gross amount of the contract from each bid winner.

Nolan, the Chief Field Inspector, helped by constantly

harassing those contractors who were not the recipients

of the group’s services.

The prosecution’s main evidence at the ten-week trial

was the testimony of two co-conspirators: Samuel Esrig

and Jack Graham. Esrig had been leader of the group for

a time and Graham had been a member. Their testimony

was corroborated by bid estimate forms, prepared by

Wheatman for the NYCHA’s use in budgeting the jobs,

which upon the execution of search warrants were found

in the contractor’s offices. The co-conspirators’ testimony

as to Wheatman was further corroborated by Wheatian’s

pre-arrest admission to a NYCHA security officer that he

had made extra copies of the bid estimates and passed them

along to certain contractors.

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The individual defendants, Wheatman, Jerome, Spector

and Marcus, as well as the corporate defendants, Jered,

Dunrite and Marcus, were each convicted of one count of

conspiracy, one count of bribery, and six counts of cop.

spiracy to prevent competitive bidding on public contracts;

the jury could not agree on a verdict with respect to the

defendants Rarback, Nolan, Fishbein and Barron. The |

eases of Goldman and Lowell had been severed, and Camp.

bell pleaded guilty on the eve of trial.

Spector, Wheatman and Jerome received jail sentences,

Spector’s company and Jerome’s company were fined

Marcus and his company received suspended sentences.

Proceedings on the First Appeal

On appeal to the Appellate Division the seven convicted

defendants raised numerous issues under state law—that

the evidence was insufficient to sustain the conviction, that

the accomplice testimony was not sufficiently corroborated,

that the indictment did not properly charge the conspiracy,

that defendant Wheatman, a public official, could not be

charged with bribery, that testimony of irrelevant assaults

was introduced, that the statute of limitations barred

the prosecution—and several constitutional claims—that

Wheatman was not properly advised of his rights before

making an admission, that the prosecution improperly

called a witness knowing that he would claim his Fifth

Amendment rights, that the prosecutor had an improper

ex parte conference with the trial justice, and that there

was an illegal search and seizure of the offices of the con-

tractors. By order entered November 6, 1969, the Appel-

late Division, First Department, in a 3-2 decision, found

ee

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the affidavit of an assistant district attorney, submitted in

support of the warrants authorizing the search of the con-

tractors’ offices, defective on its face for failing to allege

sufficient facts to establish probable cause. People v. Wheat-

man, 33 A.D.2d 65, 304 N.Y.S.2d 904 (1st Dept. 1969) ; Peti-

tion for Certiorari, Appendix B, at pp. A4-A14.

The Appellate Division, finding that the material seized

upon the search was necessary under New York law to

corroborate the accomplices at trial, did not, at that point,

pass upon any of the other appellate claims. The court,

therefore, reversed the conviction of the seven defendants

upon the law, ordered a new trial, vacated the search war-

rant and suppressed the evidence.

Subsequently the People moved in the Appellate Divi-

sion for reargument of the appeal with respect to the

defendant Nathan Wheatman, on the ground that Wheat-

man, an NYCHA employee, lacked standing to challenge

the search of the contractors’ premises. The motion was

granted [People v. Wheatmanm, 33 A.D. 2d 1107 (1st Dept.

1970)] and, thereafter, on March 26, 1970, the Appellate

Division, in another 3-2 decision, modified the order of

November 6, 1969 which reversed all seven convictions, to

afirm the conviction of the defendant Wheatman alone.

The opinions of the Appellate Division on the reargument

appear at People v. Wheatman, 34 A.D.2d 3, 308 N.Y.S.2d

919 (1st Dept. 1970); and in the Petition for Certiorari,

Appendix D, pp. A15-A19.

The People appealed to the Court of Appeals from the

Appellate Division’s reversal; Wheatman appealed from

the Appellate Division’s affirmance. On December 2,

1971, the New York Court of Appeals, on the People’s

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appeal, unanimously reversed the order of the Appellate

Division. In an opinion by Chief Judge Futp the cour

found that the district attorney’s affidavit adequately set

forth facts from which the magistrate could determin

the reliability of the informants and the reliability of the

information. Pursuant to New York law, the case wa

remanded for reconsideration by the Appellate Division;

Wheatman’s separate appeal was set for reargument

People v. Wheatman, 29 N.Y.2d 337, 327 N.Y.S.2d 643

977 NE 2d 662 (1971). Petition for Certiorari, Appendix

F, pp. A20-A28.

Proceedings on the Second Appeal

On remand, several questions under state law wer

argued and the Appellate Division unanimously affirmed

People v. Wheatman, 38 A.D.2d 801, 328 N.Y.S.2d 1016

(1st Dept. 1972). On June 8, 1972 the Court of Appeals,

in another opinion by Chief Judge Futp, unanimously re.

jected each of the remaining questions raised by the defen.

ants under state law or the constitution, without specifically

passing on Wheatman’s standing to challenge the searches,

and affirmed all the convictions. People v. Wheatman, 3

N.Y.2d 12, 334 N.Y.S.2d 842 (1972).

Jerome sought a stay of his surrender in execution of

the sentence. On July 13, 1972 the stay was denied bj

Mr. Justice MarsHaut. As of the submission of this r

sponse Jerome, residing in the State of Florida, has no

surrendered to serve his sentence. On October 6, 197

Wheatman began to serve his sentence.

Certiorari is being sought by five of the original seve

convicted defendants—Spector and his company, Dunrit

Painting Co. Inc., have not submitted petitions.

- a eeetoeas es.

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Petitioners assert that the Court should grant review

to determine the sufficiency of the affidavits underlying the

search warrants, and Wheatman’s standing to challenge a

search of Jerome’s office.

POINT

The assistant district attorney’s affidavit in support

of the application for a search warrant, based upon

sworn testimony of admitted co-conspirators whom he

had personally heard testify before the grand jury,

established probable cause.

Grand juries impanelled by the Supreme Court, New

York County, were investigating a conspiracy to rig bids

on contracts for painting entered into between the New

York City Housing Authority and various contractors, bid

rigging, bribery of public officers, bribery of labor repre-

sentatives, extortion, assault and grand larceny. During

the course of the investigation, the assistant district at-

torney in charge of the presentation of the evidence before

the grand jury made application before a Justice of the

| Supreme Court, New York County, for warrants author-

izing the search of the offices of 14 named contracting

companies, which included the corporate petitioners. The

warrants directed the police to seize certain described

“painting estimate forms.’’ As a result of the issuance

of the warrants, bid estimate forms were obtained from

the offices of many of the painting contractors. At the

eusuing trial, these estimate forms were offered as a part

of the People’s case to corroborate the testimony given

by co-conspirators Esrig and Graham. The New York

Court of Appeals applied the standards this Court set

IND CLOSE IN CENTER

forth in Aguilar v. Texas, 378 U.S. 108 (1965) and Spinelli

v. United States, 393 U.S..41) (1969), and held that the

affidavit presented in support of the warrants was suff.

cient. This decision was correct, for the affidavit, read ig

a common-sense fashion, amply complies with the rationale

in those decisions, and the constitutional requirement that

probable cause be established in the application for a

warrant.

In his affidavit (reproduced in full in the Petition for

Certiorari, pp. 4-8) the assistant district attorney stated

that he had personally determined that the 14 named con-

tractors, or their predecessors, had been doing business

with the New York City Housing Authority, and that the

addresses shown on the Housing Authority’s records re

flected the addresses listed for each of the contractors

The prosecutor also averred that he was present at pro

ceedings before one of the two grand juries investigating

bid rigging—the Fourth April 1965 Grand Jury. The pros

ecutor stated that the principals of twelve of the listed

companies, including the defendants-respondents, had been

subpoenaed to appear before the Grand Jury, each had

refused to sign waivers of immunity, and, as a result, had

had large painting contracts with the City of New York

cancelled and had been disqualified from doing further

business with the City. The affidavit then revealed that

the prosecutor had “‘heard the sworn testimony of a num-

ber of witnesses * * * who had stated that they were parties

to an agreement to rig bids at the City Housing Author-

ity.”" The “‘sworn testimony before that [grand] jury”

revealed that each of the contracting firms named in the

affidavit was ‘‘a party to the agreement to rig bids.”’ Sum

marizing the sworn testimony, the prosecutor stated that

the Housing Authority, for internal use, prepared certain

“man-day estimates’’ on jobs that were open for bidding ;

be averred that sworn testimony further revealed that

Jerry Jerome, one of the petitioners herein, the President

of Jered Contracting Corp., another petitioner herein, ob-

tained the bid estimate forms from the Housing Authority

snd passed them on to the other parties to the bid rigging

agreement so that they could utilize the estimate informa-

tion to submit false bids. Concluding that the ‘‘foregoing

reliable information”’ and his personal knowledge estab-

lished probable cause to believe that the estimate informa-

tion was used by the conspirators and that the estimates

might be found in the files of each of the contractors, the

prosecutor requested the issuance of the warrants.

The New York Court of Appeals in People v. Hendricks,

95 N.Y.2d 129, 303 N.Y.S.2d 33, 250 N.E.2d 323 (1970),

codified the standards which it found set forth in Aguilar

and Spinelli and held that an affidavit, in order to support

the issuance of a warrant, must 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.’’ 25 N.Y.2d

at 133; 303 N.Y.S.2d at 36; 250 N.E.2d at 325.

The affidavit in this case meets both prongs of the test.

Assuming that the unnamed witnesses before the grand

jury are to be treated in the same manner as unnamed

police informants, there seems to be little question that

the first prong of the test has been met. The informants

10

in this case were shown to be reliable. Unlike the situation

present in many of the search warrant cases decided by

the appellate courts, there is no statement in the affidavit

that the informants ‘‘were reliable.’’ However, this case

shows an even stronger basis for a finding of reliability

than those cases in which the officer avers that the in

formant has been “‘reliable’’ in the past, or was a ‘prudent

person.”’ Cf. United States v. Harris, 402 U.S. 573, 579

(1971). For here the informants’ information was given

under oath while testifying before a grand jury. ik

should be axiomatic that sworn testimony is sufficient,

prima facie, to warrant the belief that the witness is cred.

ible. The sufficiency of the oath as the primary form of

insuring truthfulness has been well established at common

law and is an integral part of the current judicial system

See, e.g., 6 Wigmore, Evidence, §§813-17 (3rd Ed. 1940).

The use of the oath impresses a witness ‘‘with the serious

ness of the matter and guard[s] against the lie by the |

possibility of the penalty of perjury.”’ California v. Green,

399 U.S. 149, 159 (1970). ‘‘The oath affirms the honesty

of the statement and negatives the lie or imagination.”

Spinelli v. United States, supra, at 423 (Wurre, J. con

curring) ; see also, United States v. DeSisto, 329 F.2d 923,

930 (2d Cir. 1964). Indeed, a perjury prosecution might

result even if the witness appearing before the grand jury

testified pursuant to a valid grant of transactional im

munity. See N.Y. Former Code Crim. Proc. §619-¢ (2);

N.Y. CPL §§50.10, 190.40; People v. Tomasello, 21 N.Y.

143, 287 N.Y.S.2d 1, 234 N.E.2d 190 (1968). The inherent

credibility of testimony under oath has long been the root

of the grand jury system. For, without more, a grand

jury is authorized to indict for any crime on the basis

of sworn testimony. So, too, the conviction of a defend

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sot after trial usually rests exclusively upon sworn tes-

timony. The Magistrate issuing the warrant, therefore,

had a right to rely upon the testimony given by witnesses

appearing before the grand jury and to presume them to

be credible. See, Skelton v. Superior Court, 1 Cal. 3rd 144,

158-4, 81 Cal. Rptr. 613, 619, 460 P.2d 485, 490-1 (1969) ;

see also Note, Inaccurate Search Warrant Affidavits as a

Ground for Suppressing Evidence, 84 Harv. L. Rev. 825

(1971).

The informants here were also established as reliable

because the information that they gave, implicating them-

selves in a conspiracy to rig bids submitted to the New

York City Housing Authority, would be, as far as the affi-

davit revealed, against their penal interests, subjecting

them to penalty for perjury, if false, and to prosecution

for the conspiracy, if true. The informant’s admission

of participation in the crime has been held to be highly

indicative of his credibility. See e.g., People v. Montague,

19 N.Y.2d 121, 278 N.Y.S.2d 372, 224 N.E.2d 873 (1967),

cert. denied 389 U.S. 862 (1967) ; United States v. Viggiano,

433 F.2d 716 (2d Cir. 1970), cert. denied 401 U.S. 938

(1970); Louie v. United States, 426 F.2d 1398, 1401 (9th

Cir. 1970), cert. denied 400 U.S. 918 (1970) ; United States

v. Brown, 455 F.2d 1201 (9th Cir. 1972); cf. McCreary v.

Sigler, 406 F.2d 1264 (8th Cir. 1969), cert. denied 395 U.S.

984 (1969). As Mr. Chief Justice Berczr noted in his

opinion in United States v. Harris, supra,

‘Common sense in the important daily affairs of

life would induce a prudent and disinterested observer

to credit these statements. People do not lightly

admit a crime and place critical evidence in the hands

of the police in the form of their own admissions. Ad-

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missions of crime, like admissions again proprietary

interests, carry their own indicia of credibility—suff-

cient at least to support finding of probable cause to

search. That the informant may be paid or promised

a ‘break’ does not eliminate the residual risk and op.

probrium of having admitted criminal conduct. Con.

cededly admissions of crime do not always lend cred.

bility to contemporaneous or later accusations of

another. But here the informant’s admission that over

a long period and currently he had been buying illicit

liquor on a certain premise, itself and without more,

implicated that property and furnished probable cause

to s@arch.’’ See also Skelton v. Superior Court, supra,

So, too, here. For the co-conspirators’ admissions, as re-

counted in the affidavit, were sufficiently detailed as to

preclude the likelihood that they would falsely accuse

themselves or others.

The self-implication in a bid-rigging conspiracy, even

if made pursuant to a valid grant of transactional immu-

nity, would under New York law also have the effect of

depriving the confessing contractors of substantial pecu-

niary benefits, since they would be subject to disqualifica-

tion as eligible bidders on future contracts with New York

City. N.Y. Gen. Munic. Law $103. The conspirator, tes-

tifying before the Grand Jury, is also in effect subjecting

himself to the subsequent burden of testifying at trial, to

the difficulty in confronting the accomplices he has accused,

and to the rigors of cross-examination. Further, the in-

formants’ participation in the illegal bid-rigging scheme

would cast opprobrium upon them in the business commu-

nity when the facts were eventually disclosed. Surely the

‘‘neutral and disinterested Magistrate’? who passed upon

the application for the warrant was justified in deciding,

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based upon the facts in the affidavit here, that the inform-

ants were credible witnesses when they testified before

the grand jury.

The Magistrate could see from the affidavit that there

was more than one co-conspirator testifying before the

grand jury. Since each witness must, of necessity, have

testified at a different time [see N.Y. Former Code Crim.

Proc. §§255-7], the Magistrate could give their testimony

added weight. Whatever details each conspirator revealed,

the affidavit discloses that they confirmed, at the least, the

existence of the conspiracy to rig bids submitted to the

NYCHA. Cf. People v. Fein, 4 Cal. 3rd 747, 753, 94 Cal.

Rptr. 607, 611, 484 P.2d 583, 587 (1971) ; People v. Sheridan,

2 Cal. App. 3d 483, 488, 82 Cal. Rptr. 695, 698 (1969).

The second prong of the Spinelli test is likewise clearly

met. That is, the information in the affidavit was sufficient

to allow the Magistrate to conclude that the informant

came by this information in such a manner as to ‘‘demon-

strate sufficient probability of credibility to allow the

search of the premises * * * requested.’’ People v. Hen-

dricks, supra, 25 N.Y.2d at 133, 303 N.Y.S.2d at 36, 250 N.E.

2d at 325. The affidavit establishes the source of the in-

formants’ information. The information from the inform-

ants, testifying under oath before the grand jury, estab-

lished that they were conspirators and were parties to

an agreement to rig bids. The allegation in the affidavit

that the sworn testimony ‘‘reveals that each of the named

contracting firms has been identified as a party to the

agreement to rig bids at the Housing Authority’’ means

that the 14 named contractors were implicated by their

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14

co-conspirators. There can be no doubt that a co-conspira.

tor has first-hand knowledge of who his confederates are,

and that he can identify them. His testimony about them

should give rise to probable cause. As Mr. Justice Warm

noted when concurring in Spinelli, ‘‘But if, for example,

the informers’ hearsay comes from one of the actors in

the crime in the nature of an admission against interest,

the affidavit giving the information should be held suf.

ficient.’ 393 U.S. at 425.

‘To paraphrase Mr. Justice Harlan [in Spimelli), a

Magistrate, when confronted with such a circumstanee,

could reasonably infer that the informant had gained his

information in a reliable way and not from an off-hand

remark heard at the neighborhood bar.”’ People v. Munger,

24 N.Y.2d 445, 451, 301 N.Y.S.2d 39, 43, 248 N.E.2d 882,

885 (1969). It follows, that the co-conspirators in their

testimony before the grand jury had first-hand information

of the workings of the bidding conspiracy. That is, the way

that the bidders would determine the proper bids to submit

would be known to parties to the conspiracy because of

their own complicity and personal knowledge and not by

third-hand hearsay or rumor. The detailed description

naming the defendant-respondent Jerome as the conduit

through which the man-day forms passed to the others

could only have been obtained by personal knowledge of the

co-conspirators. Moreover, since under then existing New

York law ‘‘the Grand Jury can receive none but legal

evidence’? [N.Y. Former Code Crim. Proc. §249; see N.Y.

CPL §§60.10, 190.30] the Magistrate could presume that

the testimony was not hearsay. Indeed, it would be a hy-

pertechnical reading of the affidavit which would lead one

15

to the conclusion that the information of the grand jury

witnesses was obtained in anything but a first-hand manner.

As a matter of New York legislative policy,

‘A conviction cannot be had upon the testimony of an

accomplice, unless he be corroborated by such other

evidence as tends to connect the defendant with the

commission of the crime.’’ N.Y. Former Code Crim.

Proc. §399; see N.Y. CPL §60.22

However, a Magistrate should not be faulted for relying

upon such testimony to ascertain if probable cause is estab-

lished to search for the corroborative evidence. At trial an

accomplice’s testimony has to be corroborated in order to

avoid the possibility that he may try to lessen the burden

of guilt by falsely naming others to share it; that legislative

purpose does not, however, apply during the course of a

grand jury investigation. For, while testifying before the

investigative body, prior to the filing of criminal charges

against others, the accomplice is subject to a rigorous veri-

fication of his story. If the police acting on his information

follow his advice and prove him to be a liar, he may be

charged with perjury, and the innocent person falsely ac-

cused does not suffer the ignominy of indictment, arrest and

trial. Indeed, the legislative purposes of the corroboration

rule are aided by instances such as the case at bar—cor-

roboration, needed to establish the informants’ reliability

sufficiently to meet the reasonable doubt standard at trial,

was found by following up their testimony. Had their in-

formation proved to be false, the premises, searched as a

result of the warrants, suffered less harm than the alleged

co-conspirators, accused in an indictment, would suffer

upon trial. Moreover, it should be remembered the appli-

16

cation for a search need not establish sufficient proof to

warrant a conviction after trial. As Mr. Justice Harzay,

writing for the Court in Spinelli, 393 U.S. at 419, noted:

‘‘we do not retreat from the established propositions

that only the probability, and not a prima facie shov.

ing of criminal activity is the standard of probable

cause, Beck v. Ohio, 379 U.S. 89, 96 (1964) ; that affida.

vits of probable cause are tested by much less rigorous

standards than those governing the admissibility of

evidence at trial; McCray v. Illinois, 386 U.S. 300, 311

(1967) * * *”. See United States v. Harris, supra at

582-3.

Petitioners, relying on Coolidge v. New Hampshire, 403

U.S. 443 (1971), suggest that certiorari should issue be

cause ‘‘the inability to check the basis for the prosecutor’

conclusions makes a mockery of the role of the magistrat

and in effect allows the prosecutor to issue his own war

rant” (petition, p. 9). Of course, unlike the Coolidg

situation, an independent magistrate, not the prosecutor

issued the warrant. See Shadwick v. City of Tampa, 40)

U.S. 345 (1972). In any event, the petitioners’ argumen

suggests that the affidavit of the assistant district attor

ney presenting the case to the grand jury had to be cor

roborated by the production of the text of the grand jur

minutes. The suggestion is misguided. No such require

ment, of the production of a police informant’s statemen

in haec verba, is mandated by any cases decided by thi

Court. To suggest that the sworn statement of a prose

cutor, who was known to the Magistrate as a well exper

enced trained ‘‘rackets’’ investigator [compare Unite

States v. Lewis, 392 F.2d 377 (2d Cir. 1968)], which sun

marized evidence given in his presence before the gran

jury, is less trustworthy than the affidavit of a police office

17

recounting information from an unnamed ‘‘reliable inform-

ant’? is unwarranted. The grand jury minutes, steno-

graphically recorded, serve to permanently preserve the

verbatim testimony of the ‘‘informants’’ in this case. The

Magistrate issuing the warrant had ample right to rely

upon the prosecutor’s affidavit.

‘Where the issue is submitted upon an application for

a warrant, the magistrate is trusted to evaluate the

credibility of the affiant in an ex parte proceeding.

As we have said, the magistrate is concerned not with

whether the informant lied, but with whether the affi-

ant is truthful in his recitation of what he was told.

If the magistrate doubts the credibility of the affiant,

he may require that the informant be identified or even

produced.’’ Sate v. Burnett, 42 N. J. 377, 388, 201

A.2d 39, 44 (Werntravs, C.J.) (1964), quoted with ap-

proval in McCray v. Illinois, 386 U.S. 300, 307-8 (1967).

Were the prosecutor’s sworn summary of the testimony

incorrect, the defendants, who had access to the grand jury

minutes during the course of the trial, after Esrig and

Graham had testified, would no doubt have brought that

fact to the attention of the courts below. No such claim

has ever been made in this case. The prosecutor, in his

affidavit, referred the Magistrate to the grand jury testi-

mony, practically inviting him to verify the accuracy of

his statements. The grand jury minutes, an immutable

testament to the actual proceedings before the grand jury,

were available for the issuing Magistrate’s perusal. The

absence of a check of the assistant district attorney’s ab-

stract of the testimony does not negate the existence of

the information or the implied invitation to its verifica-

tion. Nor does it constitute an improper delegation to

the prosecutor of the Magistrate’s function. The grand

18

jury minutes, which as the minutes of trial reveal cop.

tained the testimony of Esrig and Graham, two of th

key co-conspirators, overwhelmingly demonstrate thi

probable cause would have been established had the mip.

utes been made part of the application. The omission

of the independent verification should not be held to vitiate

the proper application for the warrant. The Magistrate

issuing a warrant is not performing a merely ministerial

act. He must use his discretion, independently of th

prosecutor [Cf. Coolidge v. New Hampshire, supra at 449.

53; Shadwick v. City of Tampa, supra], to determine th

sufficiency of the application and of the verification he feek

he needs. That determination, made in the exercise of

sound judicial discretion, should not be overturned. (7.

Jones v. United States, 362 U.S. 257, 270-1 (1960) ; Spimeli

v. United States, supra at 419.

Moreover, despite the petitioners’ description of the

affidavit, it is obvious that rather than reporting mere

‘‘eonclusions’’ as to what witnesses said, the prosecutor

was accurately summarizing the evidence which he per.

sonally heard. Indeed, the evidence to be summarized,

contained in grand jury minutes which were several hu-

dred pages long, was as complex as the facts uncovered

and used in a tax investigation. The affidavit here is there.

fore analogous to the affidavit upheld in Jaben v. United

States, 381 U.S. 214, 224 (1965), which established probable

cause to believe that the defendant committed the crim

of income tax evasion. As the Court noted:

‘‘Establishing of grounds for belief that the offense

of tax evasion has been committed often requires a re

construction of the taxpayer’s income from any i-

dividually unrevealing facts which are not susceptible

19

of a concise statement in a complaint. Furthermore,

unlike narcotics informants, for example, whose credi-

bility may often be suspect, the sources in this tax

evasion case are much less likely to produce false or

untrustworthy information. Thus, whereas some sup-

porting information concerning the credibility of in-

formants in narcotics cases or other common garden

varieties of crime may be required, such information

is not so necessary in the context of the case before

us.””

Once the Magistrate credited the information in the

afidavit, probable cause was established. He could, then,

based upon the information in the affidavit, rationally con-

clude that the bid estimate forms would be in the conspira-

tors’ files. The affidavit alleged

‘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 the sworn testimony before the grand jury

shows that further that the parties to the bid rigging

agreement were able to obtain the Housing Author-

ity’s estimate and that the parties utilized the infor-

mation in the Housing Authority’s estimate informa-

tion to submit false bids to the Housing Authority.

‘‘That the sworn testimony of a number of wit-

nesses stated that Jerry Jerome, who is a convicted

felon and the President of Jered Contracting Corp.,

was the individual who obtained the Housing Author-

ity estimate information and passed copies of that in-

formation on to the other parties to the agreement”’

(Petition for Certiorari, pp. 6-7).

Since there is reasonable probability that estimates used

in the preparation of a bid will be found in the files of the

20

bidder, the Magistrate could properly have concluded that.

the forms to be seized would be found at the known ad.

dresses of the co-conspirators’ offices. This case differs

from the usual cases which involve possessory crimes or the

fruits of acrime. For in those situations there often is not

any reason for believing that the property to be seized is at

a given place, unless someone stated that he has seen it

there. Here, however, the documents to be seized would be

found in the ordinary course of business in the offices of the

co-conspirators who were, presumably, still participating in

the continuing commercial conspiracy affecting their busi-

ness. As Chief Judge Fup noted below,

‘Since the bid estimate information was essential to

the preparation of the false bids and the carrying on

of the conspiracy, it was entirely reasonable to con-

clude that the forms would be in the offices of the con-

spirators.’’ People v. Wheatman, supra, 29 N.Y.2d

at 346, 327 N.Y.S.2d at 649, 277 N.E.2d at 666.

‘‘[I]n judging probable cause issuing magistrates are

not to be confined by niggardly limitations or by restric-

tions on the use of their common sense.’’ Spinelli v. United

States, supra, at 419; United States v. Ventresca, 380 US.

102, 106-9 (1965). Using the proper standard, the issuing

magistrate reasonably concluded that there was probable

cause to believe that the incriminating papers could be

found in the offices described in the warrants.

Since the warrants were properly issued, and the

searches proper, there is no need to consider whether

Wheatman had standing to challenge the warrants. In

any event, Wheatman, a NYCHA employee, clearly lacks

21

standing to challenge the search of the contractors’ offices.

“Fourth Amendment rights are personal rights which

*¢* may not be vicariously asserted.’? Alderman v.

United States, 394 U.S. 213, 216 (1969). Wheatman had

alleged no property rights in the premises searched and

was not a person who, having some rights in the premises,

is the victim of the search. Cf. Mancusi v. DeForte, 392

U.S. 364 (1968). The only connection Wheatman had with

the evidence seized is that it was introduced against him;

that is not enough to give him standing. Alderman v.

United States, supra.

Conclusion

The petition for certiorari should be denied.

Respectfully submitted,

Frank 8. Hogan

District Attorney

New York County

Miowazx R. J uviLEr

Lewis R. FrreEpMaN

Assistant District Attorneys

Of Counsel

October, 1972