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People v. Guardino

May 21, 2009


Judgment, Supreme Court, New York County (Robert H. Straus, J.), rendered February 6, 2007, as amended February 7, 2007, convicting defendant, after a jury trial, of enterprise corruption, combination in restraint of trade and competition in violation of General Business Law 340 and 341, bribe receiving by a labor official (13 counts), grand larceny in the third degree (6 counts) and grand larceny in the fourth degree, and sentencing him to an aggregate term of 6 to 18 years, affirmed.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Gonzalez, P.J., Tom, Buckley, Sweeny, Catterson, JJ.


Defendant and eight co-defendants, including Local Union No. 8 of the United Union of Roofers, Waterproofers & Allied Workers (Local 8), were charged in a 54 count indictment with, inter alia, enterprise corruption, combination in restraint of trade, bribe receiving by a labor official, grand larceny in the third degree, and grand larceny in the fourth degree. Defendant was the business manager or chief executive of Local 8, and four other co-defendants were also labor officials. Two of the co-defendants are allegedly members of the Genovese Organized Crime Family.

The enterprise corruption count alleged that, from September 2001 to the date of the indictment, defendants and others, including members of the Genovese Crime Family, were part of a criminal enterprise referred to as the "Local 8 Group." This group allegedly accepted bribes and extortion payments from roofing contractors in exchange for "labor peace and lenient treatment by union officials who failed to enforce the union collective bargaining agreements on union projects." The alleged pattern of criminal activity included 113 acts of possession of stolen property, money laundering, falsifying business records, labor bribery, extortion, and combination in restraint of trade in violation of the Donnelly Act.

Local 8 and four other defendants entered guilty pleas prior to trial. The remaining defendants, including appellant, proceeded to trial on October 16, 2006. The jury commenced deliberations on December 12, 2006 and reached a verdict on December 18. The jury convicted defendant of enterprise corruption and 21 other felony counts.

Defendant's application pursuant to Batson v Kentucky (476 US 79 [1986]) was properly denied. Defendant's argument before the trial court was limited to a numerical argument, i.e., that four of the six black female prospective jurors had been stricken by the prosecutor*fn1. The dissent contends this numerical showing was sufficient to meet defendant's initial burden of demonstrating that these potential jurors may have been challenged for impermissible reasons. A review of the record, however, does not support this conclusion.

Of the six black women in question, four were peremptorily challenged by the People, one was stricken by the defense and one was seated. While a purely numerical argument may give rise to a prima facie showing of discrimination (see e.g. People v Rosado, 45 AD3d 508 [2007] [where the prosecutor exercised a peremptory challenge against all four Hispanic panelists remaining in the venire]), numbers alone may not automatically establish such a showing. Even though a prima facie showing of discrimination "may be made based on the peremptory challenge of a single juror that gives rise to an inference of discrimination" (People v Smocum, 99 NY2d 418, 422 [2003]), if a numerical argument, in and of itself, fails to raise an inference of discrimination the party raising a Batson claim must present "other facts or circumstances suggesting intentional discrimination" (People v Harris, 55 AD3d 503, 504 [2008], lv denied 11 NY3d 425 [2009]) in order to meet the first requirement of the three-prong Batson analysis.

Here, defendant presented no other factors which would give rise to a suggestion that those jurors were peremptorily challenged for impermissible reasons. His numerical argument "was not so compelling as to warrant a finding of a prima facie case" (People v Solares, 309 AD2d at 503) and was "unsupported by factual assertions or comparisons that would serve as a basis for a prima facie case of impermissible discrimination" (People v Brown, 97 NY2d 500, 508 [2002]).

The court properly exercised its discretion in denying defendant's requests for a mistrial during the fourth and final day of jury deliberations, following a six-week trial involving complex evidence and charges (see People v Baptiste, 72 NY2d 356, 360 [1988]; Matter of Plummer v Rothwax, 63 NY2d 243, 250 [1984]). The court properly responded to a series of jury notes, which variously reported a deadlock and asked for additional instructions, by first giving a modified Allen charge encouraging a verdict, then a full Allen charge, and finally asking the jury to report whether or not, in light of additional instructions concerning applicable law, it wanted to continue deliberating or not. The court cautioned the jurors not to surrender their conscientiously held beliefs, and there was nothing coercive in any of its instructions (see People v Ford, 78 NY2d 878, 880 [1991]; People v Pagan, 45 NY2d 725 [1978]).

Even though, according to the jury's notes, one juror was unwilling to apply the law to the facts, there was no basis for finding the juror grossly unqualified (see CPL 270.35[1]) simply on the basis of the notes, without making an inquiry. However, defendant never requested any inquiry, but merely reiterated his request for a mistrial. In any event, the apparent problem was resolved after further instructions concerning the law were given to the jury.

A court officer's advice to the jury that a requested item was not available for review because it was not in evidence constituted a ministerial function, and defendant's presence was therefore not required (see People v Bonaparte, 78 NY2d 26 [1991]).

The "criminal enterprise" element of the enterprise corruption charge (Penal Law 460.10[3]) was supported by ample evidence of labor racketeering committed for a period of over a year by union officials including defendant (see People v Cantarella, 160 Misc 2d 8, 14 [Sup Ct, NY County 1993]). Although the enterprise ended upon the arrests of its members, the continuity requirement was satisfied by evidence that defendant committed predicate criminal acts while "operating as part of a long-term association that exist[ed] for criminal purposes," and had no obvious preplanned termination date (H.J. Inc. v Northwestern Bell Tel. Co., 492 US 229, 243 [1989]; see also ...

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