People v. Friedlander

Section 220 of the Labor Law (Cons. Laws, ch. 31) provides that eight hours shall constitute a legal day’s work for all classes of employees in this State except those engaged in farm and domestic service. Each contract to which the State or municipal corporation is a party shall contain a stipulation that no laborer shall be permitted or required to work more than eight hours in vjiy calendar day. Subdivision 3 of this section provides the wages:

“ 3. The wages to be paid for a legal day’s work, as hereinbefore defined, to laborers, workmen or mechanics upon such public works, shall be not less than the prevailing rate of wages as hereinafter defined. * * *.

“ It shall be the duty of the fiscal officer, as defined in this section, to ascertain and determine the schedule of wages to be paid workmen, laborers and mechanics on each such public work, prior to the time of the advertisement for bids, and such schedule of wages shall be annexed to and form a part of the specifications for the work. * * *.

“ Any person or corporation that wilfully pays after entering into such contract, less than such stipulated wage scale as established by the fiscal officer shall be guilty of a misdemeanor and upon conviction shall be punished for such first offense by a fine of five hundred dollars or by ■imprisonment for not more than thirty days, or both fine and imprisonment; * *

A conspiracy is a crime defined in article 54 of the Penal Law, section 580: If two or more persons conspire to commit a crime or to commit any act injurious to the public health or for the perversion or obstruction of justice, or the due administration of the laws, each of them is guilty of a misdemeanor, punishable as ordinary misdemeanors. These two crimes are separate and distinct, and the punishment

These defendants were tried and convicted of a conspiracy to violate section 220 of the Labor Law, that is, of a conspiracy to pay less than the prevailing rate of wages, and they have been sentenced to imprisonment in excess of the time provided for the violation of the Labor Law. This appeal brings up for review, therefore, not the question whether any of these parties failed to pay the prevailing rate of wages, or violated the Labor Law, but whether they conspired or agreed together to accomplish this purpose. In this connection we must also read section 583 of the Penal Law: "No agreement except to commit a felony upon the person of another, or to commit arson or burglary, amounts to a conspiracy, unless some act beside such agreement be done to effect the object thereof, by one or more of the parties to such agreement.”

These defendants had contracts, or employed labor to work on contracts, for “ painting and alteration repair work ” on public schools in the borough of Brooklyn, city of New York. That some of them paid less than the rate fixed by the Comptroller, or the " prevailing rate,” as it is called, appears from the evidence; that they conspired to do so, or entered into a conspiracy to violate the Labor Law, as charged in the information, is lacking of proof. We, therefore, turn to the record to analyze the evidence as to each which may bear in the slightest way upon an agreement, a federation or combining together to violate this law.

The Brooklyn and Queens Contractors Association was an organization of contractors who are specialists in doing painting on public works, including public schools. Their organization was no different than a labor organization, and

Evidence of Conspiracy as against Friedlander.

Most all of the appellants are members of the contractors’ association; they were all engaged in the same business as contractors, in what respondents claim to be a specialized type of work — doing painting for public works. The fact that appellants belong to this association cannot alone convict them of the conspiracy charged, when there is an absence of proof that the organization was formed, or was operated for the criminal purpose of subverting the provisions of the Labor Law. The proof in this case contradicts the hypothesis that the organization was conducted for any such purpose. It is noteworthy that, while many contractors belonging to the association were joined in the indictment, at least one of them was discharged by the courts below as having no part in the alleged conspiracy.

The meetings of the association were open to persons other than members: they were attended by subcontractors who were desirous of making contacts with the members of the association; and at no time was there any discussion about agreeing to pay the prevailing rate of wage. The secretary of the association, Lawrence Berson, was called by the People to testify as to the membership of the association, but he was not asked to tell what took place at the meetings. The proof indicates that Friedlander had at one time represented the organization in conferring with the National Recovery Act authority to secure a better relationship between employers and employees in the painting trade. The evidence introduced by the People indicates that these contractors were rivals, and that the bidding for the contracts was competitive. There is nothing to indicate that these

The most effective testimony concerning the criminal nature of the contractors’ association was that of Samuel Freeman, the secretary and treasurer of the District Council of the Painters’ Labor Union. He testified that in May, 1936, he had a conversation with Adolph Unger, an alleged conspirator whose conviction was reversed by the court below. Over objection and exception, Freeman, who was not a defendant, said that Unger had told him that he could, not compete on school work and pay union wages, because the contractors had an association, of which he was also a member, and that this association conducted its business on a “ racket basis,’’ and “ he told me that this association meets every week, decides, discusses policies about their work and every member of the association is to pay four per cent of the net price of the contract as protection against the union. Mr. Unger told me that due to this protection it is impossible for him, as one who wants to be a legitimate employer and employ union labor, to take any work. He told me that he thinks that it is about time that the union, and I as the secretary of the union, should do something about it, so as to break up this racket and create a condition whereby the legitimate employers should be able to do work and employ union labor and pay them the prevailing rate of wages, the union rate of wages.”

This hearsay evidence, directly contradicted by Hyman Tamaroff, who was a member of the union, and present when the conversation took place between Unger and Freeman, was inadmissible. These gratuitous remarks of

The alleged admissions made by the appellant Friedlander were testified to by Nathan Bresinger, a council delegate of the Painters Union. He stated that his purpose was to organize the job (which Friedlander was doing on a public school on Fort Hamilton Parkway, between Forty-third and Forty-fourth streets), and he was there to see that the “ men get the prevailing rate of wages which the City rate provides for.” When Friedlander said he could do nothing about it, Bresinger accused him of not wanting to sign up and pay the wages, and said, “You would rather take the man’s wages off and give to some gang,” Fried-lander replied, “ I can’t help it, I am not myself in it.” When Bresinger returned the next day to say he would place pickets if Friedlander did not make a decision, he testified that Friedlander said, “ I gave you my answer yesterday. You know, yourself, that I, myself, cannot do

Evidence of Conspiracy as against Appellant Jenks.

It is the same as against this appellant as it is against Friedlander, with the exception of the last paragraph above, relating to the alleged admissions by Friedlander. The testimony as to alleged admissions made by Jenks, from which respondent seeks to infer Jenks’ participation in a conspiracy to violate section 220 of the Labor Law, was given by Martin Barth, a painter who was employed by Jenks at School No. 205. This witness said he asked Jenks for more money and Jenks replied that he couldn’t possibly pay any more, that business and competition were keen, and also he had to pay “ protection money.” This is not

Evidence of Conspiracy as against Appellant Louis Glasser.

On the general proof of conspiracy, the evidence is the same as that against Friedlander, already related, except that it should be noted that the hearsay testimony of Freeman as to what Unger had told him was particularly prejudicial as against this appellant. Freeman said that Unger told him that Louis Glasser was the go-between between the contractors’ association and the “ protective ” association. As already pointed out, this testimony was not in furtherance of the conspiracy, but was entirely disconnected from any of the actions of the alleged conspirators and pure hearsay.

The alleged admissions made by this appellant were testified to by Nathan Shelensky, a painter and business agent of Local 971 of the Painters Union. He approached Louis Glasser when the latter was on a public works job for which Louis’ brother, Irving Glasser, had the contract. The witness testified, however, that Louis said he was the boss, and told Shelensky he did not want to work with the union. Shelensky said he would be compelled to place pickets on the school, and Louis Glasser told him he would not because “ we have somebody to take care of these schools. * * * We have protection. We are protected by the Buggsey Goldstein gang.” After a court recess, Shelensky was recalled to the stand and testified that Louis Glasser had told him that he belonged to a “ Brooklyn & Kings Association ” and that “ we have protection, we are protected by the Buggsey Goldstein gang.” Here

The Testimony as to the Alleged Conspiracy as against Appellant Irving Glasser.

He too was a member of the contractors’ association, and the same may be said with reference to the testimony against him in this regard as has already been said concerning the other appellants. There is no evidence, such as the alleged admissions made by the other appellants described above, that be took active part in the alleged conspiracy, except as may be inferred from the fact that he held the contract for the job which Louis Glasser was bossing when he made the statements to Nathan Shelensky. There is nothing to indicate that Irving Glasser was around when Louis made these statements, nor was there any evidence that Irving Glasser made any such statements.

The Evidence of Conspiracy as against Appellant Louis Yukelson.

Aside from the fact that Yukelson was a member of the contractors’ association, the only material testimony linking him with the alleged conspiracy between the contractors to pay less than the prevailing wage is the testimony of Sickels, the business agent of Local 645 of the Painters Union. He stated that Yukelson asked him why unions didn’t do something about painting on schools; that “ if you are not in on the inside you can’t get any jobs.” He stated that certain bosses had formed an association, though he would mention no names. At a later time,

Evidence of Conspiracy as against Samuel Swirnow.

The only possible connection this appellant could have with the conspiracy was the testimony given by Gustav Peterson and Arthur Rosenroth. The former testified that while working on a job of this appellant’s father, William Swimow, this appellant acted as foreman of this job; that Sam was the one.who put him to work, and that he received his .pay from Sam, although he admitted that he signed receipts for his pay which read, “ Received from William Swirnow.” Rosenroth said that, when he came to the job where Sam was working, Sam put him to work, although William, Swirnow paid him his wages.

Berson, the secretary of the contractors’ association, testified, on, cross-examination, that Samuel Swimow was not a member of the association; and there is nothing in the record .which could possibly connect this appellant with any alleged conspiracy. Moreover, I do not believe that this appellant can be charged with a direct - violation • of section 220 of the Labor Law. Samuel apparently never had a contract to execute the painting work on any public school with which we are concerned in this-case; he was

Charge of Conspiracy as against William Swirnow.

This defendant was a member of the contractors’ association. Aside from this fact there is nothing to link him with any alleged conspiracy except for the fact that he paid his painters on public school jobs, for which he held contracts, less than the prevailing rate of wage.

Charge of Conspiracy as against James Abisror.

There is no direct testimony, either by Person, the secretary of the contractors’ association, or the hearsay testimony of Freeman, to indicate that this appellant was even a member of the association The only connection from which an inference is drawn, that he was a member of the association, was the fact that he made a check in the amount of ten dollars, payable to the association. (See People’s Exhibit No. 29.) Respondent claims that this was the initiation fee which the appellant paid for his admission to the organization. Yet respondent emphasizes, with reference to other appellants, that they paid an initiation fee of twenty-five dollars for membership in the organization. Under the circumstances, Abisror’s membership, on the basis of this evidence alone, is subject to grave doubt. There is nothing else in the record to prove conspiracy although the violation of the Labor Law by paying lower wages may have been proved.

As to the defendants Ziff and Markowitz, there is no evidence against them of any conspiracy.

If the conclusions to be drawn from the evidence were those stated by my brother Finch, we would agree with him in his result for reasons stated. The lack of evidence does not justify the conclusion. None of these defendants

For the reasons here stated, the judgment convicting these defendants of conspiracy to violate section 220 of the Labor Law should be reversed, and the information dismissed, as to this charge.

As stated at the beginning, we are not touching upon the charge of the violation of the Labor Law, which is, as we understand it, still open as against these defendants, or such of them as have paid, or been charged with paying, less than the prevailing rate.

The judgment of the Appellate Division, so far as appealed from, should be reversed and the judgment of the Court of Special Sessions convicting the defendants on conspiracy charges should be reversed and the conspiracy charges of the information dismissed.

(dissenting in part). The unanimous affirmance by the Appellate Division as to these remaining defendants should be affirmed, except as to defendants Ziff and Markowitz. It is impossible upon this record to say that there is no evidence sustaining the finding of the three-judge court of Special Sessions unanimously affirmed by the Appellate Division in so far as the appeal is here taken. The evidence in this record is ample to sustain the finding of Special Sessions; but even if the evidence were meager and thin, this court could not review the facts on the weight of the evidence. In other words, although the evidence is decidedly meager and thin, we cannot say that there was no evidence to sustain the conclusions of guilt as found by the triers of fact, the judges of Special Sessions. This court cannot review the facts or the weight of evidence.”

In brief, the evidence against these defendants divides itself into three classes. First, sixteen witnesses testified against these remaining defendants, except Ziff and Markowitz, that they paid less than the prevailing rate of wages, and against this testimony there was no testimony by way of denial or explanation offered on the part of defendants. We thus have in a small neighborhood a number of men who are known to each other, closely associated together, and doing the same kind of work, and committing the same violations in time, place and circumstance. This constitutes some evidence to be submitted to the jury bearing on this charge of conspiracy. (People v. Luciano, 277 N. Y. 348 , 359; 1 Wigmore on Evidence [2d ed.], § 304; cf. People v. Van Tassel, 156 N. Y. 561 , 564; Commonwealth v. Smith, 163 Mass. 411 , 418.)

We next have evidence showing that these defendants were associated together in the Brooklyn and Queens Contractors Association. The importance of this testimony is not that the association was illegal and, hence, membership constituted participation in the conspiracy, but that those who were banded together in the organization were in close communication with one another. The commission of like offenses under similar circumstances by persons in close communication with one another, surely is some evidence of a common design or conspiracy. (Wigmore on Evidence, supra.)

As to one of the defendants, Abisror, there is no evidence that he was a member of this association, but there is evidence from which an inference might be drawn that he was seeking membership therein.

The third class of evidence is that of admissions by these defendants that they were associated together for the

The Appellate Division has reversed and discharged the alleged gangsters who were found guilty by Special Sessions as against the weight of the evidence; and, therefore, these admissions only bear on the question of the guilt of these defendants in so far as they are alleged to have conspired to obtain these contracts by means of paying less than the prevailing rate of wages.

No defense is possible to these defendants by way of lack of knowledge of the prevailing rate of wages, as this was fixed by the Comptroller before the bids were had on these contracts, and the contracts expressly provided the scale, of wages to be paid to the different kinds of mechanics and helpers. As pointed out by the Appellate Division, there was no possibility of discriminating between • the wages paid to painters, decorators and to their helpers, fdr the reason that in this contract the Comptroller fixed only one rate for this work, as contrasted with a subdivision of other work between master mechanics and apprentices.

It follows that the judgments appealed from, except as to defendants Ziff and Markowitz, should be affirmed.

Lehman, Htjbbs and Loeghran, JJ., concur with Crane, Ch. J.; Finch, J., dissents in part in opinion in which Rippet, J., concurs; O’Brien, J., taking no part.

Judgment accordingly.