Opposition Brief — Rastelli v. New York

a —

SUPREME COURT, U. & ) NOV 11 1975

In The | MICHAEL RODAK, JR. CLERK

et te

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No. 6%] 5-4U08'4

PHILIP RASTELLI,

Petitioner,

-against-

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

On Petition for a Writ of Certiorari

to the Court of Appeals of the

State of New York

BRIEF FOR THE PEOPLE OF THE STATE OF

NEW YORK IN OPPOSITION

HENRY F. O'BRIEN

District Attorney

Suffolk County

Criminal Courts Building

Center Drive South

Riverhead, New York

FRANCIS W. RHINOW

CHARLES M. NEWELL

Assistant District Attorneys

of Counsel

LE

II

TABLE OF AUTHORITIES

Cases: Page

| Bruton v. United States, 391 U.S. 123 ----- 25,26

Delli Paoli v. United States,

352 U.S. 232 --------------- 25

Dutton v. Evans, 300 U.S, 74 --<-<-900---8- 26

Glasser v. United States,

315 U.S. 60 at 80 ---------- 19,22

| Kelley v. People, 55 N.Y. 565 ------------- 25

| Osborn v. United States,

385 U.S. 323 --------------- 24

| People v. Connolly, 253 N.Y. 330 ---------- 22,23

People v. Gibson, 23 N.Y. 618 ------------- 24

| People v. Jelke, 1 N.Y.2d 321 ------------- 23

i People v. LaBarbara, 274 N.Y. 239 --------- 23

People v. Luciano, 277 N.Y. 348 ----------- 27

| People v. Miles, 123 App. Div. 862 -------- 22

| People v. Miranda, 23 N.Y. 439 ------------ 25

| People v. McKane, 143 N.Y. 455 ------------ 27

People v. Peckens, 153 N.Y. 576 ----------- 22,24

|

PRRs ee eS et a

III

Cases: Page

People v. Ryan, 263 N.Y. 298 -------------- 23

People v. Vaccaro, 288 N.Y. 170 ----------- 27

United States v. Littoran,

421 F. 2d 981 ------------ 26

United States v. Nixon, 418 U.S. 683 ------ 26

United States v. Phillips

270 F, 2d 175 ----------=- 19

United States v. Weiser

428 F. 2d 932 ------------ 26

Statutes:

McKinney's Penal Law Section 190.40-------- 24,27

a ed

Pe hee MOORE romagS Dy, CRI EGS "

SOE PL SOLED OORT FR mE re oe

In The

SUPREME COURT OF THE UNITED STATES

October Term, 1975

No.

PHILIP RASTELLI,

Petitioner,

-against-

THE PEOPLE OF THE STATE OF NEW YORK,

Respondent.

On Petition for a Writ of Certiorari

to the Court of Appeals of the ;

State of New York

BRIEF FOR THE PEOPLE OF THE STATE OF

NEW YORK IN OPPOSITION

INTRODUCTION

TOES OAS LL ORD OID ae ee NT

This is a brief in behalf of the

respondent in opposition to a petition for a

f

writ of certiorari to the Court of Appeals of J

i

the State of New York.

———

ery ae eee

2

The petitioner was indicted by the Grand

Jury, Suffolk County, in July, 1971, under indict-

ment number 829-71 and charged with sixteen counts

of conspiracy and criminal usury. After trial by

jury in County Court, Suffolk County, the petition-

er was found guilty of one count of criminal con-

spiracy as a misdemeanor and seven counts of

criminal usury as felonies and, on February 7, 1973,

he was sentenced to concurrent term of one years on

OO ie

the misdemeanor conspiracy conviction and indeter-

minate term of four years on each of the criminal

usury convictions.

The conviction was unanimously affirmed,

without opinion, by the Supreme Court of the State

of New York, Appellate Division, Second Department,

in an order dated December 3, 1973. The order of

the intermediate appellate court was unanimously

affirmed in a decision of the Court of Appeals of

the State of New York in an opinion rendered on

June 16, 1975.

OPINION BELOW

The order of the Supreme Court of the

State of New York, Appellate Division, Second

Department, unanimously affirming the conviction

without opinion, is officially reported at 43

A.D.2d 699 (1973).

The opinion of the Court of Appeals of

the State of New York, unanimously affirming the

order of the intermediate appellate court is

officially reported at 37 N.Y.2d 240 (1975).

JURISDICTION

The order of the Court of Appeals of

the State of New York was entered on or about

December 16, 1975, the date the decision was

rendered. An extension of time in which to file

this brief in response to the petition for a writ

of certiorari was granted by this Court, and the

time to file has been extended to and including

4

November 5, 1975. The jurisdiction of this Court

is invoked under 28 U.S.C. Section 1257(3).

QUESTION PRESENTED

Whether the petitioner's constitutional

right to confront witnesses against him was

violated where the statements introducted into

evidence against him were made by the petitioner's

co-conspirators during the course and in further-

ance of the conspiracy, thus falling under a well-

established exception to the hearsay rule?

STATUTES INVOLVED

United States Constitution -

Sixth and Fourteenth Amendments.

STATEMENT OF FACTS

1. Summary

This is a case involving the crimes of

conspiracy to commit a felon (one count) and of

criminal usury (seven counts) which took place in

Suffolk County, New York from about December, 1970

ator arene meester teen SUEY NE UR OMERMR CU TEST RETENROREN TRC REN PD TR

5

to July, 1971. The defendant, Philip Rastelli,

was aided in this nefarious enterprise by four

co-defendants, and the jury returned a verdict of

guilty against all of them. Defendant organized,

controlled, operated and supplied the money for

the enterprise, and his four co-actors committed

the substantive crimes.

The People's case against the defendant

rested on direct and circumstantial evidence.

: William Murray, the People's chief witness,

testified that he borrowed $5,000 from the co-

defendants and actually received part of the loan

from the defendant. Murray paid $150.00 interest

each week for four or five months and then ex-

perienced difficulty in making the payments. A

co-defendant told him to recommend "customers" to

them.

Six witnesses (customers) testified that

they borrowed varying sums of money from the defend-

sisi iii aca

6

ants and repaid it at usurious rates of interest.

In addition, William Murray testified that

Suffolk County detectives placed a tape recorder

and later a transmitting device on him, and that

conversations between him and the co-defendants

implicating the defendants were recorded. The

tapes, cassettes and transcripts were introduced

into evidence.

2. The Substantive Crimes

In order to place this case in its proper

perspective, it is necessary to briefly outline

the_modus operandi of the enterprise.

William Murray testified that he wanted

to borrow $5,000 from the defendants. A co-

defendant stated that he was not authorized to

lend that amount of money and that he would confer

with his "higher ups". Several days later, Murray

called the co-defendant and the co-defendant stated

; that Murray would receive $1,500 now and that he

isin

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7

would have to pay three points interest each week.

Murray only could repay the principal in units of

$500. He received the $1,500 in Nassau County and

the co-defendant took Murray's car registration as

security. The co-defendant stated that the balance

of the loan would be delivered to Murray in New

York City (842-860)™.

William Murray went to the Cloud Room, a

bar in Queens, and was introduced by a co-defendant

to the defendant. The defendant stated that the q

co-defendants spoke "highly" of Murray, and, there-

fore, Murray would receive the $5,000 loan. Another

co-defendant again confirmed the three points in-

terest payments of $150 each week. Defendant, who

was not present when a co-defendant delivered the

$1,500 to Murray and took his car registration,

stated that there was no need for the security

and that Murray's car registration should be

returned. Defendant then took out an envelope,

* Numerical references are to the Appellant's Record

on Appeal submitted to the Court of Appeals of

the State of New York.

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8

gave it to a co-defendant and stated:"Here, hold

on to this. This is the rest of the loan." The

co-defendant gave the envelope to the co-defendant

who previously had delivered the $1,500 to Murray.

Later, defendant stated, "Let's give the kid his

money and get out of here. It's getting late."

Outside the bar, the co-defendant gave Murray this

envelope. On the trip home, Murray opened the

envelope and counted $3,500 in cash (860-872; count

4).

Murray paid $150 interest each week for

four or five months and then experienced difficulty

in making the payments. He was told to recommend

"customers" to the defendants at four points in-

terest each week. Murray asked why the customers

would pay four points when he was paying only

three points, and the co-defendant stated that one

point goes to two co-defendants, one point goes

to two other co-defendants and two points go to

the defendant because it's his money (876-883).

9

On June 15, 1971, William Murray went

with a co-defendant to the home of another co-

defendant in Brooklyn for a meeting concerning a

check of Murray's that had "bounced". Immediately

before they arrived, Murray saw the defendant talk-

ing to the co-defendant who lived in Brooklyn, on

a street corner in front of the co-defendant's

house. Detectives Miller and Colon confirmed this

observation. The two co-defendants (the defendant

left after his conversation with the co-defendant),

and Murray then drove to the Cloud Room for an

important meeting that lasted several hours (1013-

1019; 1783-1786; 2184).

In the Fall of 1970, Louis Breitbach

testified that he borrowed $2,000 from the co-

defendants at four points ($80) interest each week

(603-604). He made many interest payments (605-

609; count 9).

In January, 1971, Murray recommended

Harold and Arthur Scott to the co-defendants.

la ati dam gS ant ne PSNR errr renga ncemireene re

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10

They met with the co-defendants and borrowed

$2,000 at four points ($80) interest each week.

They made several interest payments on Sundays.

In the Spring of 1971, they borrowed another $1,000

at three points ($30) interest each week (890-899,

379-414, 481-482, 487-499; counts 10 and 11).

In the Winter of 1971, Murray recommend-

ed Richard Brightman to the co-defendants. Bright-

man borrowed $1,000 at four points ($40) interest

each week. Brightman also made several interest

payments on Sundays (899-901, 768-780; count 15).

In January, 1971, Mr. Murray recommended

Murray Bogatin to the co-defendants (909-912).

Bogatin borrowed $3,000 at four points ($120)

NGF EE ALT IRS LOLS IN

interest each week (912-920). He made several in-

terest payments on Sundays (909-922; count 3). :

In February or March, 1971, James Lemanski

; testified that he borrowed $500 from the co-defend-

ants at four points ($20) interest each week (282-

298). He made many interest payments (307-310;

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11

count 5).

3. The Tape Recordings

During the months of March to July, 1971,

William Murray testified that Suffolk County

detectives placed a tape recorder and later a

transmitting device on him, and that conversations

between him and the co-defendants were recorded.

The tapes, cassettes and transcripts were intro-

duced into evidence (944-961, 980-992, 995-1000,

1002-1021, 1027-1038, 1040-1045).

William Murray testified that before he

received the balance of his loan, a co-defendant

stated that they would meet his boss, "a fellow

by the name of Rusty". At a bar in Queens, Murray

was introduced to "Rusty", who was the defendant

(861-866). Additionally, on the cross-examina-

tion of Detective Miller by the defendant's

attorney, Miller stated that he saw the defendant

and a co-defendant talking in Brooklyn shortly

12

before Murray and another co-defendant arrived

there for a meeting (see Facts, supra, p.9). The

corss-examination was as follows:

Q. So that as you approached this inter-

section Bill Murray and whoever was with

him, was out of the car walking over to

Frank (co-defendant). A. That's right.

Q. And Rusty? A. That's right, sir.

Q. At that time? A. Yes, sir (p.1792)

It is clear, therefore, that when the

tapes and transcripts refer to "Rusty", it is the

defendant. Parenthetically, defendant concedes,

by his failure to raise this argument, that he is

the "Rusty" mentioned in the tapes.

On the transcript of March 14, 1971,

there is a discussion between William Murray and

a co-defendant concerning a $200 check that was

given as part of a loan to James Lemanski that had

"bounced". The co-defendant stated that "Rusty

didn't like the idea of what happened. See Rusty

found out about it" (Transcript of March 14, 1971,

pp. 1-17, Exhibits - Volume I). James Lemanski

13

testified that he received a $500 loan which in-

cluded a $200 check (298-305). The $200 check

was signed by a partner (he was authorized to sign

the corporate checks) of Louis Breitbach. Breit-

bach had borrowed money from the defendant and then

the defendant had a meeting with him to discuss

several checks of his that were "bouncing" (627-

629).

Murray had borrowed money from the

defendants and could not meet the interest pay-

ments. He was also in trouble with his license

as a bail bondsman. To solve Murray's plight,

the co-defendants told him to recommend "custom-

ers" to them. Murray stated that the customers

would have to make their own arrangements with

the defendants and that he wanted to talk to

"Rusty" to get his situation "squared away"

(Transcript of March 14, 1971, p. 20; Exhibits -

Volume I). Murray so testified at the trial (875-

877).

14

On the same transcript, a co-defendant

discussed various collections made during the day

and mentioned that $6,500 was lent to Wink Realty

Corp. The co-defendant then mentioned that there

was only two points interest on the $6,500 because

the other co-defendants would receive the profits

from the sale of the house (Transcript of March

14, 1971. p. 45 - Exhibits - Volume I). William

Murvay testified that the defendant got two points

interest on every loan (882-833). Louis Breit-

bach testified that $6,500 was lent to Wink Realty

Corp. by a co-defendant and that another co-defend- i

ant got the profits (614-622). (See also Murray's :

testimony 944-952).

On the transcript of June 20, 1971, a

co-defendant and William Murray discussed who got

credit for a $360 interest payment (unnumbered

pages 1-6; Exhibits - Volume II). The check for

$350 (plus $10 cash) had “bounded". Murray was

;

;

15

called into Brooklyn to explain why his check had

"bounced" (1013, 1019, 1543-1546). Murray asked

the co-defendant if he told "Rusty" about it. The

co-defendant said "No, no" and then stated, "I

don't know if you want to burden him (Rusty) with

this damn problem. He's so disgusted by what's

happening now" (unnumbered p. 6; Exhibits -

Volume II). A number of checks had “bounced"

and this conversation shows the defendant's know-

ledge and control of the situation.

On the June 20, 1971 transcript, a co-

defendant and Murray discussed whether or not

Murray's payments on his loan were interest or

principal. One co-defendant was treating the

payments as interest and another co-defendant

was treating the payments as principal. Murray

stated that whatever one co-defendant told him

was the deal. Murray stated, "It's not their

money (the co-defendant's), it's Rusty's money

16

right". The co-defendant then answered "Right."

Murray stated that he was getting “hot" because the

co-defendants made him think it was their money.

Murray wanted to go to the "source" in the city

(unnumbered page 12; Exhibits - Volume IT).

Murray fell behind on his interest pay-

ments and a co-defendant sent the interest pay-

ments to the city to "cover" Murray. On the June

30, 1971 transcript, Murray discussed this situa-

SENN On ar

ron

tion with a co-defendant and he wanted to know if

Rusty said anything to another co-defendant con-

cerning the loan. The co-defendant stated that

"They (Rusty) were, they were gonna call him (co-

defendant) in before but when you come down there..

that more or less squashed it" (p. 14; Exhibits -

LOTS LT EET ee ane Cad eee

Volume II). The co-defendant stated, "But I don't

PERM

know what the hell Frankie (co-defendant) said

to him (defendant) if he said anything at all to

:

t

£

H

him. Cause I know he (defendant )would have got

pissed off. He didn't say nothing to me about it.

17

And I spoke to him. He didn't say noth-

ing to me about it. He (defendant) said, he had

seen him but he didn't say nothing about it. What

he had said to him" (p. 15; Exhibits - Volume II).

The co-defendant stated that the defendant had an

appointment with the other co-defendants and since

Murray met with the defendant there was no need

for the meeting. The following conversation then

took place:

Murray: Or at least, you know, got it

(payment) to you this time. So in case,

he (defendant) starts thinking about it

again.

Co-defendant: Yeah.

Murray: See. Rusty calls in Tony

(co-defendant). F---g Tony's gonna

climb all over me. You know it.

Co-defendant: I know it.

Murray: Tony's (co-defendant) gonna

climb all over you (co-defendant that

Murray's talking to) and Tony's gonna

climb all over Joe fea-datemaant}

Co-defendant: He (defendant) gets

Joe. He won't bother me till he grabs

Joe.

Murray: Sure, he'll (defendant) give

you some S---.

Co-defendant: He (defendant) gives me

some but he grabs Joe. He rheems Joe.

.

Paetees a

18

Joe ... stepped on. I don't know.

(P. 16; Exhibits - Volume II)

Several pages later there is a discussion

concerning the interest payments and that things

will work out because the payments will start

coming in (p.22).

POINT I

THE PETITIONER WAS NOT DEPRIVED

OF ANY RIGHT UNDER THE SIXTH

AMENDMENT TO CONFRONT WITNESSES

AGAINST HIM

Count one of the indictment charges

the defendant with the crime of conspiracy to

commit the felony of criminal usury between the

months of September, 1970 to July, 1971, and count

four charges him with the felony of criminal usury

in the month of September, 1970 with respect to

the loan to William Murray.

The existance of a conspiracy may be

proved from circumstantial evidence and this

:

|

Pe

3

¥

<

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Z

Court has stated the proposition in the following

| |

19

language:

"Participation in a criminal

conspiracy need not be proved

by direct evidence; a common

purpose and plan may be inferred

from a ‘development and a colla-

tion of circumstances’ (case

omitted)". [Glasser v. United

States, 315 U.S. at

Furthermore, there is no requirement that all the

conspirators participate to the same degree in the

fulfillment of the conspiracy [United States v.

Phillips, 270 F.2d 175 (2d Cir.)].

In this case, the jury heard evidence

of particular acts, which, when taken together,

furnished a basis for a finding that the crimes

of conspiracy and criminal usury existed in connect-

ion with the loan to William Murray.

Murray testified that he negotiated his

loan with a co-defendant, and that two co-defend-

ants were present when he received part of his

loan. At the same time, a co-defendant took

20

Murray's car registration as security and told

him that he would have to pay three points inter-

est each week. Murray testified that he met the

defendant and the four co-defendants in New York

City and that the defendant stated that Murray

would get the loan because the co-defendants spoke

"highly"of him.

Murray testified that the defendant,

who was not present when a co-defendant delivered

the $1,500 to Murray and took his car registration,

stated that there was no need for the security and

that Murray's car registration should be returned.

Another co-defendant again confirmed the three

points interest payments each week.

Murray testified that the defendant took

out an envelope, gave it to a co-defendant and

stated, "Here hold on to this. This is the rest

of the loan". The co-defendant then gave the

envelope to the co-defendant who had previously

delivered the $1,500 to Murray. Later, defendant

stated, "Let's give the kid his money and get out ;

i

21

of here. It's getting late." Outside the bar,

the co-defendant gave Murray this envelope and

Murray counted $3,500 in cash. Murray paid $150

interest each week for four or five months (the

equivalent of about $7,500 interest on the $5,000

loan).

In short, William Murray negotiated his

loan with one co-defendant; received pat of his

loan from two co-defendants, and had his car

registration taken as security; received the bal-

ance of his loan when all five defendants were

&-~

present; and had his registration returned by the

defendant even though he was not present when it

was taken. Several different co-defendants

collected the interest payments.

This evidence was legally sufficient to

establish beyond a reasonable doubt every element

of the crimes of conspiracy and of criminal usury

in connection with William Murray's loan (count

22

four) and the defendant's commission thereof

(Penal Law Section 190.40; People v. Connolly,

253 N.Y. 330; People v. Peckens, 153 N.Y. 576;

People v. Miles, 123 App. Div. 862, affd. 192 N.Y.

541; Glasser v. United States [Roth], 315 U.S. 60).

William Murray testified that he paid

$150 interest each week for four or five months

and then he experienced difficulty in making the

interest payments. The co-defendant told him to

recommend "customers" to the defendant at four

points interest each week.

The jury heard testimony from six

witnesses ("customers") that they borrowed varying

sums of money from the co-defendants and repaid

it at usurious rates of interest.

William Murray had a tape recorder and

later a transmitting device placed on him and

conversations between him and the co-defendants

were recorded and introduced into evidence. The

23

conversations all took place during the negotia- |

ting or lending of money or the collection of

interest.

The conversations indicate that the

defendant lent the money; that he received two

points interest each week on each loan; that he

had knowledge and control over the operation in

Suffolk County; that he was disgusted by the

number of checks that had “bounced"; and that he

called several meetings with the co-defendants

to "rheem them out" (see Facts, supra)

"A prima facie of conspiracy (as to ;

Murray's loan - author) having been established, |

evidence of every act of the individual conspira-

tors done in furtherance of the common purpose is

admissible" [People v. Connolly, 253 N.Y. 330 at

340; People v. Jelke, 1 N.Y.2d 321 at 337; People

v. LaBarbera, 274 N.Y.239; People v. Ryan, 263

N.Y. 298].

24

Penal Law Section 190.40 states in part,

that a person is g ity of criminal usury when he

takes or receives any money, at a rate exceeding

twenty-five percentum per annum. Every tape

recorded a conversation that was uttered during

the collection of interest payments from the

various witnesses and was uttered in furtherance

of the common purpose.

Finally, the use of a tape recorder to

preserve the conversations and its subsequent

introduction into evidence has been permitted

[Osborn v. United States, 385 U.S. 323; People v.

Gibson, 23 N.Y.2d 618].

Therefore, the evidence was legally

sufficient to establish beyond a reasonable doubt

every element of the crimes of conspiracy and of

criminal usury in connection with the five addit-

ional loans [Penal Law Section 190.40; People v.

Connolly, 253 N.Y.330; People v. Peckens, 153

25

N.Y. 576; Kelley v. People, 55 N.Y. 565].

The existence of a conspiracy and the

petitioner's participation therein, having been

established by sufficient evidence, the petition-

er was not deprived of his right to confront

witnesses by the introduction into evidence against

him of statements made by his co-conspirator. This

evidence did not violate the rule announced in

Bruton v. United States [391 U.S. 123, Anno. Con-

frontation Clause - Bruton Rule 29 L. E2d 931; see

also People v. Miranda, 23 N.Y.2d 439]. Those

cases dealt with a confession by one defendant

(naturally it was after the crime was completed)

which also implicated his co-defendant. The

confession was then introduced at the joint trial,

and bound the one who uttered it. The jury was

told that it did not bind the other defendant

[Delli Paoli v. United States, 352 U:S. 232].

Bruton held that the limited instructions concern-

26

the confession were improper. However, the

court did state that the admission of a statement

which constitutes a recognized exception to the

hearsay rule, does not violate the Sixth Amendment

[Bruton v. United States, supra at 128 n.3; Dutton

v. Evans, 300 U.S. 74 at 80 and 86; United States

v. Littoran, 421 F. 2d 981 (2d Cir.); see Facts,

supra]. This rule was recently reaffirmed by this

Court in United States v. Nixon, 418 U.S. 683.

Since there was a sufficient showing of

a "joint venture" among the co-defendants, includ-

ing the defendant, the statements of the co-defend-

ants were all admissible as declarations in further-

ance thereof and Bruton is not controlling [Dutton

v. Evans, supra; United States v. Nixon, supra;

United States v. Weiser, 428 F.2d 932 (2d Cir)].

Finally, any acts and declarations of

the co-defendant while participating in the crime

are admissible against the other participants as

part of the res gestae and are a recognized except-

27

ion to the hearsay rule [People v. Vaccaro, 288

N.Y. 170; People v. Luciano, 277 N.Y.348; People

v. McKane, 143 N.Y.455; 22 A CJS Criminal Law

Section 77].

Every tape recorded a conversation that

was made during the collection of interest pay-

ments from the various witnesses. The statements

implicating the defendant were part of the res

gestae since the Penal Law of New York State [see,

McKinney's Penal Law, Book 11A, Section 190.40]

states that it is a crime to charge, take or

receive interest at a rate of interest in excess

of twenty-five percent per annum.

SR

28

CONCLUSION

THE PETITION FOR A WRIT OF

CERTIORARI SHOULD BE DENIED

IN ALL RESPECTS.

Respectfully submitted,

HENRY F. O'BRIEN

District Attorney

Suffolk County

Attorney for Respondent

FRANCIS W. RHINOW

CHARLES M. NEWELL

Assistant District Attorneys

of Counsel

Dated: October 30, 1975

SR 6 ATED ee ees

ie te ee