People v. Cohen

• Decision Date: 28 May 1918
• Citation: 119 N.E. 886,223 N.Y. 406
• Parties: PEOPLE v. COHEN.
• Court: New York Court of Appeals Court of Appeals

223 N.Y. 406

119 N.E. 886

PEOPLE

v.COHEN.

Court of Appeals of New York.

May 28, 1918.

Appeal from Supreme Court, Trial Term, New York County.

Joseph Cohen was convicted of murder in the first degree, and appeals. Affirmed

Hogan, J., dissenting.Frank Moss, of New York City, for appellant.

James O'Malley, of New York City, and Alfred L. Becker, of New Canaan, Conn., for the People.

ANDREWS, J.

Upon an appeal from a conviction of murder in the first degree but two questions are presented to us: Was the trial fair and was there sufficient evidence to support the verdict? Does the record disclose material errors which affect the substantial rights of the defendant?

[1] We may not substitute ourselves for the jury. If diverse inferences may properly be drawn from the testimony; if witnesses contradict each other, of if their character is criticized; if the probability of the stories told by them is questioned; if their interest in the result may influence them-it is for the jury to decide where the truth lies. We may not reverse its finding because some of us or all of us would have hesitated to reach the same conclusion.

On the evening of November 24, 1914, Barnett Baff was shot down in a public street in New York City by two Italian gunmen. These gunmen were the tools of one Antonio Cardinale. Whether Cardinale was himself the tool of the defendant, Cohen, was the question at issue. Baff was a poultry dealer in a large way. Because of his unfair business methods great hostility existed against him among his competitors, and also among the slaughterhouse men to whom the poultry was sold. Among these latter was Cardinale, and his feeling toward Baff was bitter. Cohen was not a dealer but unloaded poultry from the cars for many of those who were, and was interested financially in two or more slaughterhouses. In this last enterprise he had lost considerable money. His position toward Baff is in dispute. It may fairly be inferred, however, that it was not friendly, and that he sympathized with those who thought they had cause of complaint against him.

[2] The claim of the state is that, with this situation as a motive, Cohen and others entered into a conspiracy for the murder of Baff, and that to effectuate it they employed Cardinale. As the very basis of this claim reliance must be placed upon Cardinale's testimony. If that is rejected as unworthy of belief, the prosecution must fail. Cardinale is a self-confessed criminal of a dangerous and vicious type. He was brought here from Italy under the pledge that he should not be prosecuted for his crimes in this state. He may have the hope that, if he convinces our courts that he was not the principal in the murder, any punishment to which he might be exposed under the Italian law would be lessened or escaped. His word is to be taken with great caution.

The indictment charges Joseph Cohen, Jacob Cohen, David Jacobs, William Simon, Abe Graff, and Moe Rosenstein with the murder of Barnett Baff. Of these, Rosenstein pleaded guilty to manslaughter and was used as a witness for the people. The indictment against Simon was dismissed. The other four defendants were tried together. The jury acquitted Jacob Cohen and David Jacobs. It found Abe Graff guilty of manslaughter in the first degree and Joseph Cohen guilty of murder in the first degree. Joseph Cohen has appealed from the judgment entered on this verdict.

The story of Cardinale, so far as it affects Joseph Cohen, was substantially as follows: He is an Italian, 29 years of age. He came here 17 years ago, when he was 12. He spent a year in school, and then was employed in various places in the manufacture of pocket-books. He evidently thought that he could better himself by entering into the chicken business, and in May, 1913, he and his brother-in-law, Campo, set up a slaughterhouse. In it the two men put all the money they could raise. They bought their chickens from various dealers at the West Washington market. On one occasion, when it was impossible to buy chickens otherwise for his trade, Cardinale met the defendant, Cohen for the first time, and Cohen by his influence helped him to procure what he needed. From that time on he saw Cohen frequently, and the defendant began to complain to him of Baff and his practices. Finally he suggested to Cardinale that in some way they should frighten Baff and so reform him; that they should place a bomb in or near his house. Cardinale had a driver named Sorro, and he said to Cohen that Sorro would do the work. The bomb was in fact placed in front of Baff's house at Arverne, but failed to explode, and Cardinale told the defendant what had been done, and he asked him for money for Sorro. Sorro came to Cohen for the same purpose.

The business of Cardinale & Campo was not flourishing, and Campo wished to retire. The defendant suggested that his brother-in-law, Jacobs, would make a good partner for Cardinale; and, while the negotiations to that end were pending, he came up and looked over Cardinale's slaughterhouse. Thereafter, in July, 1913, Jacobs did buy out Campo, and the firm of Cardinale & Jacobs was formed.

As the bomb had failed to frighten Baff, the defendant suggested that Cardinale should send a black-hand letter to Baff. He next suggested that the slaughterhouse of a man named Newmark, who was a friend and all of Baff, should be burned, and he offered $200 or $300 for the job. The fire occurred and Cardinale talked with the defendant afterwards about the payment of money for this service. Later Cohen told Cardinale to hire some one to poison Baff's horses, promising $15 or $25 for each horse killed. He told him where he could get the poison, and after one or more horses had been killed in this way Cardinale told Cohen the result.

These various attempts having no effect, Cohen, who had all along expressed great bitterness against Baff, finally said that he should be killed. He said to Cardinale that the latter, doubtless, could find good boys uptown for the job, and that there was $500 in it. Acting under these instructions, Cardinale tried to engage one Greco to kill Baff. Greco, however, was not satisfied with the reward, and Cardinale told Cohen that Greco did not think $500 was enough. Cohen thought it was. Finally Cohen came to negotiate personally with Greco. He met him and promised him $700.

Thereafter, various schemes were made for the murder. It was first planned to shoot Baff at his Brooklyn market and Cardinale discussed this matter with Cohen. It was next planned to shoot him at his Eightieth street market, and Cohen was told of this fact, then at One Hundred and Ninth street, then at Washington market, where Baff had his principal place of business. Greco and his tools seemed afraid to act and Cardinale told Cohen of this fact. Finally Greco concluded that he would like a small rifle with a silencer. Cardinale told Cohen, and Cohen ordered him to buy one at a place in Hoboken. Meanwhile Cardinale & Jacobs did not prosper in their business and they sold out in September, 1914. This did not end, however, Cardinale's interest in the conspiracy against Baff. He thought that his failure was largely due to Baff's actions, and Cohen, who had put up considerable money for Cardinale & Jacobs and who had lost in the venture, seems to have thought so also.

The attempt to buy the rifle in Hoboken was a failure, and Cohen then sent Cardinale to Greco with $10 on the theory that Greco could obtain one. The rifle was bought and given to Greco, but, although various plans were tried, Greco accomplished nothing. There were complaints about this delay and he finally retired from the job. But he knew of two boys, whose names the witness refused to give, who might do it and he sent Cardinale to them. Under these circumstances, Cohen raised his offer to a thousand dollars. The two boys refused to take the job for that sum, and Cohen then raised it to $1,500. Thereupon they accepted, and Cardinale brought one or both of them down to look the ground over. He told Cohen this fact. There were certain lofts over the stores in the market. It was planned to shoot Baff from one of these with the silenced rifle. Cohen was told this fact, and he took Cardinale up into one of the lofts to determine whether it was suitable for the purpose. The gunman wished to stay in this loft overnight, so that he might have a chance at Baff when he came early in the morning, and Cohen brought bags for the gunman to sleep on. This plan was a failure, and later the gunman went to another loft, from which he hoped to waylay Baff, and Cohen was told of this also. This plan too failed.

It was next arranged that the gunmen should go down to the market in an automobile with which to escape after Baff had been shot, and Cohen was informed of this fact. Cohen did not wish to be present when the murder was committed, and finally Cardinale told him that the gunmen would come with the car on the afternoon of Tuesday, November 24, 1914. They did come. Baff was lured out of his store by a telephone call; he was shot and the gunmen escaped in the automobile.

The night after the murder, Cardinale went to Cohen's house in Brooklyn to obtain money for the gunmen. When he went in David Jacobs and his wife and the defendant's wife were present. Cohen came in later. He warned Cardinale against coming to see him, and promised to send money the next day. He again saw Cohen later about money for the murder, and still later he had a talk with Cohen, in which Cohen told him that Rosenstein, who was involved in the various transactions, was going to squeal.

As will be seen, a great part of this story, which contains many circumstances omitted here, does not of itself directly affect Cohen. It relates to acts done in his absence. The details are important chiefly because, if untrue or improbable, they cast doubt upon Cardinale's testimony. The essential part is that he committed this or that act at Cohen's...