People v. Cable

• Decision Date: 10 November 1983
• Citation: 96 A.D.2d 251,468 N.Y.S.2d 470
• Parties: The PEOPLE of the State of New York, Respondent, v. Frank CABLE and Denise Godbee, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 470

468 N.Y.S.2d 470

96 A.D.2d 251

The PEOPLE of the State of New York, Respondent, v. Frank CABLE and Denise Godbee, Defendants-Appellants.

Supreme Court, Appellate Division,

First Department.

Nov. 10, 1983.

Joyce P. Adolfsen, New York City, of counsel (John Latella, Brooklyn, with her on brief; Robert M. Morgenthau, attorney, New York City), for respondent.

Bernard V. Kleinman, New York City, for defendant-appellant Cable.

Ronna D. Brown, New York City, of counsel (William E. Hellerstein, New York City, attorney), for defendant-appellant Godbee.

Before SULLIVAN, J.P., and ROSS, CARRO, ASCH and KASSAL, J.

SULLIVAN, Justice Presiding.

Defendants Denise Godbee and Frank Cable stand convicted of felony murder and related offenses arising out of the armed robbery of Mr. and Mrs. Arnold Weiner, an elderly couple, in their Manhattan apartment, in the course of which the victims were bound and threatened with a knife. Two days later Mr. Weiner, who had been struck on the head during the robbery, died as a result of a heart attack. The principal issue is the sufficiency of the proof offered to establish that the stress of the robbery caused the fatal heart attack.

In June 1980 Godbee began working as a maid for Maria Kiper, who resided on the sixth floor at 155 Riverside Drive in Manhattan. Shortly thereafter, Mrs. Kiper recommended Godbee to Anna Weiner and her husband Arnold, a retired diamond merchant, who were looking for a maid. The Weiners, a couple in their late 80's, lived on the tenth floor in the same apartment building. Godbee worked for the Weiners for the first time on Wednesday, July 9, 1980.

Two weeks later on July 23, 1980, at about 8:55 a.m., Cable, who at the time was sharing a room with Godbee, his fiancee, at the Hotel Lawrence in Rockaway Park, was observed entering 155 Riverside Drive. A few minutes later Godbee entered the building and the two rode up in the elevator together to the tenth floor.

After being admitted to the apartment and finding Mr. Weiner in his bedroom, reading the newspaper as was his early morning custom, Godbee, as she had done two weeks earlier, left the Weiners' apartment door closed but unlocked while she went downstairs to deliver a newspaper to Mrs. Kiper. During Godbee's absence a male intruder, who, the jury by their verdict determined to be Cable, entered the Weiner apartment and at knifepoint tied up the Weiners. Apparently Godbee returned to the apartment sometime during the incident. Mrs. Weiner, who had a limited recollection of the incident, awakened to find herself and her husband, both bound, lying on the living room floor. She asked Godbee, who was sitting in a chair, to call the superintendent. Godbee replied that she had already called the police. Meanwhile, about twenty minutes after he had entered the building, Cable was seen leaving. As he walked past the doorman he attempted to cover his face with his hands.

When the police arrived, they found Mr. Weiner, who had been tied up with a necktie, disheveled and bleeding from the mouth. He had to be taken to Roosevelt Hospital, where he was treated for cuts and bruises. Mrs. Weiner's dress was torn and in disarray. A search of the apartment revealed that a small amount of money was missing, as well as three diamond rings: a wedding band with a diamond studded platinum setting; a pearl and diamond ring set in platinum; and a cocktail ring featuring rubies and diamond baguettes set in platinum around a large center diamond. A gold wedding band, a gold pocket watch and two pairs of cufflinks were also missing.

A few hours after the robbery Cable sold an old pearl platinum ring with the name "Weiner" engraved thereon at a jewelry store located across the street from the Hotel Lawrence. Cable returned the next day and sold an antique diamond ring set in white gold but later reclaimed the ring when payment on the jeweler's $195 check was refused for insufficient funds. That same day he went to another jewelry store in the vicinity and sold two rings, one, a single 50 point diamond ring, the other, a wedding band with diamond baguettes.

Mr. Weiner remained in his apartment until the evening of the next day when, complaining of pain in the left lateral lower chest, just above the waist, he went to see his physician, Dr. Liebling, who noted an abrasion on his lower lip. Mr. Weiner spent the following day in bed. When he awoke at 5 p.m., after napping, he complained of not feeling well. Dr. Liebling was summoned. When he arrived he found Mr. Weiner pale, clammy and not responsive to questions. Dr. Liebling immediately sent for the paramedics, who unsuccessfully attempted closed heart resuscitation. Mr. Weiner was declared dead at 6:15 p.m.

According to Dr. Liebling Mr. Weiner, who had been his patient since 1976, was overweight and suffered from glaucoma in both eyes, a cataract in his right eye and an umbilical hernia. Dr. Liebling had not ordered an EKG when he examined Mr. Weiner on the day after the robbery. Nor, in the years he had treated Mr. Weiner, had Dr. Leibling ever detected any signs of heart disease.

Dr. Elliot Gross, the Chief Medical Examiner for New York City, performed an autopsy on Mr. Weiner and found the presence of arteriosclerosis, hardening of the arteries, in the coronary arteries, the vessels which carry blood to supply the heart. Dr. Gross also found a clot in one of the heart vessels, and an infarct, which is a dead portion of the heart muscle, usually caused by a diminished blood supply to the area affected. The color of the infarct and the lack of any incipient scar tissue indicated to Dr. Gross that the infarct had occurred about 48 hours before Mr. Weiner's death. In his opinion, the myocardial infarction was the cause of death.

Dr. Steven Factor, a pathologist and associate professor at Albert Einstein College of Medicine, testifying for the defense, concurred in Dr. Gross' conclusion that Mr Weiner's death was caused by a myocardial infarction, but disagreed as to the age of the infarct. Dr. Factor explained that in his review of the slides of Mr. Weiner's heart tissue he saw a greater number of white cells, known as leucocytes, than he would have expected had the infarct been only 48 hours old. In addition, the leucocytes had begun to break down and Dr. Factor noted the presence of other cells, known as fibroblasts and macrophages, at the periphery of the infarct. According to Dr. Factor leucocytes, the first cells to appear at the damage site after a myocardial infarction, increase in number up to 48 hours or perhaps even up to 72 hours before beginning to break down. After 72 to 96 hours fibroblasts, which form scar tissue, and macrophages, which "eat" the debris in the infarct area, begin to appear. Thus, the breakdown of the leucocytes and the presence of scavenger cells suggested to Dr. Factor that the infarct was three to four days old. While Dr. Gross' microscopic examination of Mr. Weiner's heart tissue had shown an influx of leucocytes he had not found any evidence of fibroblasts.

On the issue of causality Dr. Factor testified that a myocardial infarction could be the result of arteriosclerosis, a spasm of the coronary artery, a blood clot, or extreme emotional stress. In his view, however, no one could, with certainty, state that the stress of the robbery led directly to Mr. Weiner's infarct. According to Dr. Factor most fatal infarcts occur at a time when the victim is completely at rest.

On rebuttal Dr. Millard Hyland, Deputy Chief Medical Examiner for Manhattan and Staten Island, testified that the microscopic tissue samples and photomicrographs indicated that the infarct was two or two and one-half days old. His opinion was based on the presence of leucocytes and only a few scattered macrophages, which sometimes arrive early with the leucocytes, and the absence of fibroblasts. Dr. Hyland also noted that the red blood cells of the clot had not yet broken up; nor had scar tissue begun to form at the clot's edges. With a reasonable degree of medical certainty he stated that the emotional and physical trauma suffered by Mr. Weiner caused the heart attack.

Before the issue of causal connection between the robbery and Mr. Weiner's death is addressed, the extent of Godbee's role in the crime must be considered since she argues that the People failed to prove her guilt as an accessory. In our view the evidence was sufficient to justify the jury's finding that her complicity was that of an accessory, rather than, as she contends, of a mere bystander with guilty knowledge (see People v. Reyes, 82 A.D.2d 925, 926, 440 N.Y.S.2d 674; Matter of Victor M., 68 A.D.2d 837, 414 N.Y.S.2d 519.) A person is criminally liable for an offense when, acting with the requisite mental culpability, he intentionally aids another person to engage in conduct which constitutes an offense. (Penal Law § 20.00.)

The evidence amply demonstrates that Godbee intentionally aided Cable in the robbery of the Weiners and the burglary of their apartment. It is undisputed that she left the door to the apartment unlocked, thereby providing access for him, and although they had arrived separately at the apartment building that morning, they rode upstairs together in the same elevator. In light of such evidence the notion that Cable randomly selected the Weiner apartment to burglarize was properly rejected by the jury.

Godbee's participation was not, however, limited to leaving an apartment door unlocked. Instead of immediately alerting the doorman or building superintendent after Cable left the apartment, she called the police. When the police failed to respond promptly she called them again without alerting the building personnel. Thus, Godbee's actions could be seen as part of a design to ensure that Cable fled the building safely.

Godbee also provided the police officers with a misleading description of the robber. She told them he was a clean shaven male Hispanic in his...