People v. Fein

• Decision Date: 07 July 1966
• Citation: 18 N.Y.2d 162,272 N.Y.S.2d 753,219 N.E.2d 274
• Court: New York Court of Appeals Court of Appeals
• Parties: , 219 N.E.2d 274 The PEOPLE of the State of New York, Respondent, v. Mark FEIN, Appellant.

Page 753

272 N.Y.S.2d 753

18 N.Y.2d 162, 219 N.E.2d 274

The PEOPLE of the State of New York, Respondent, v. Mark FEIN, Appellant.

Court of Appeals of New York.

July 7, 1966.

Louis Nizer, Paul Martinson and Robert Arum, New York City, for appellant.

Frank S. Hogan, Dist. Atty. (Eric A. Seiff and H. Richard Uviller, New York City, of counsel), for respondent.

KEATING, Judge.

On November 8, 1963, a Harlem River drawbridge operator spotted a body later identified as Rubin Markowitz, a book-maker, floating in the river. The last-known contact with the deceased was a telephone call from him at 4:00 P.M. on October 10, 1963. Death was caused by four .22 caliber bullet wounds. ¹

The defendant is a businessman with a wife and three children living in comfortable circumstances but also addicted to gambling and association with prostitutes. He maintained an apartment on 63rd Street under the fictitious name of 'Weissman' for his extramarital activities and contributed large amounts to the support of a prostitute known by numerous aliases but hereinafter referred to as Gloria Kendal. Gloria, who procured entertainment for defendant's friends as well as engaging in prostitution herself, was the primary witness for the prosecution.

In essence, her testimony--and the People's case--was that, sometime after 5:00 P.M. on October 10, 1963, defendant telephoned her (Gloria lived on 73rd Street) from the Weissman apartment and urgently requested her presence. She complied and upon her arrival he exhibited a trunk, admitting that he had shot his book-maker, to whom he owed money from the recent World Series, and stuffed the body into the trunk. After defendant pleaded for her assistance, Gloria called a friend,

Broudy, who immediately left his Bronx apartment. In the meantime she asked defendant if he was sure Ruby was dead. Defendant allegedly responded in the affirmative and lifted the trunk lid exposing part of an arm, some new clothesline and some white material that looked like a shirt.

In addition to Broudy, a Miss Geri Boxer, who was to have picked Gloria up at the latter's apartment but was told by one Sandra Ede that Gloria was at the Weissman apartment, appeared at the apartment. These two, along with Gloria, loaded the trunk into a station wagon rented by defendant and drove to Gloria's apartment. Gloria went inside for awhile and then returned to the others outside. The three then drove around, finally stopping on Harlem River Drive and throwing the trunk into the river. Gloria also threw in two duffle bags, one of which contained pieces of carpet from the apartment.

Defendant was convicted upon a jury verdict of murder in the second degree and sentenced to State prison for 30 years to life. After a full posttrial hearing, defendant's motion for a new trial was denied. The Appellate Division affirmed the judgment.

Defendant's contention that the use of a special jury deprived him of his constitutional right to a fair trial has been considered before and found to be without merit. (Fay v. People of State of New York, 332 U.S. 261, 67 S.Ct. 1613, 91 L.Ed. 2043; Moore v. People of State of New York, 333 U.S. 565, 68 S.Ct. 705, 92 L.Ed. 881.)

Similarly, the record fails to support defendant's claim that unfavorable publicity aroused such prejudice in the community that he was deprived of a fair trial. The publicity in question for the most part took place at the time of arrest, nearly eight months prior to trial. Defendant's own counsel argued on a habeas corpus hearing four months prior to trial that the effect of publicity had long since passed and defendant was ready to go to trial. Finally, defendant never even sought a change of venue. (See Stroble v. State of California, 343 U.S. 181, 72 S.Ct. 599, 96 L.Ed. 872.)

Defendant next urges that the seizure by police of a chair from a warehouse and its introduction into evidence violated his constitutional rights. The chair in question had been in the Weissman apartment at the time of the murder. The serologist who examined and tested the chair reported that signs of human blood were present on the chair. However, there were insufficient stains present to group or type the blood.

We find that even if this objection was properly preserved it has no merit. The facts show that defendant voluntarily relinquished all right, title and interest to the chair with an intention of terminating forever his ownership in it. Defendant abandoned his interest and retained no rights in the chair which could be breached by its subsequent seizure by law enforcement officers.

Defendant also argues that the Appellate Division abused its discretion in failing to consider his appeal from the denial of his motion for a new trial on the ground of newly discovered evidence. It is clear, however, from the opinion of the Appellate Division (24 A.D.2d 32, 263 N.Y.S.2d 629) that the alleged newly discovered evidence was fully considered by the court and found insufficient to warrant a new trial.

Moreover, it is well settled that this court has no power in a noncapital case to review the discretionary order denying a motion for a new trial. The right to a review of such an order ceases at the Appellate Division. (People v. Bonifacio, 190 N.Y. 150, 82 N.E. 1098; People v. Luciano, 275 N.Y. 547, 11 N.E.2d 747; People v. Girardi, 303 N.Y. 887, 105 N.E.2d 109; People v. Mistretta, 7 N.Y.2d 843, 844, 196 N.Y.S.2d 715, 164 N.E.2d 730).

Although the evidence brought out at the posttrial hearing on the motion for a new trial would, therefore, not normally be before us, since the hearing was so complete and extensive evidence was taken, much of which could be considered on a Coram nobis, we have considered the merits of defendant's evidence.

The only serious question which arises from this evidence concerns defendant's contention that facts brought to light at the posttrial hearing establish a failure of the prosecution to disclose material exculpatory evidence, thus denying defendant a fair trial. Specifically, defendant points to four instances of alleged suppression: the ballistics report of Detective Kelly, the testimony of Sandra Ede, the testimony of Mrs. McNair and Mrs. Bennett, and the testimony of Mrs. Generazio.

The objection in the first instance has little substance. The Kelly report of an inconclusive naked eye examination was in no way contradictory to, but was fully superseded by, the microscopic examination and analytic tests by Detective O'Brien who testified and was subject to cross-examination. Both the O'Brien report and the Kelly report were in the physical possession of the court during the entire trial pursuant to a subpoena by defendant and were fully available to defendant. In short, there was neither suppression of evidence nor was the evidence in question exculpatory. (See Jordon v. Bondy, 72 App.D.C. 360, 114 F.2d 599, 602.)

Similarly, the testimony of Sandra Ede, a prostitute who spent a good deal of time in Gloria's apartment and frequently took messages, was in no way suppressed. Sandra, who was under psychiatric care when she testified at the posttrial hearing, consistently advised all representatives of the prosecution that she could not recollect the events of October 10, 1963.

Faced with an unstable and uncertain witness, whose testimony would add nothing to his case, the prosecutor cannot be faulted for choosing not to call her to the stand. However, he did the next best thing in providing the defense with the information. At the close of his case, the District Attorney in open court recalled who Sandra was and stated that, since she claimed to have no recollection, he was not calling her to the stand. He then gave her name and address to defense counsel so they could do whatever they wanted with it. Defense counsel, who already knew about Sandra, chose not to call her either. Clearly, evidence is not suppressed when the defendant has such a knowledge of it.

Mrs. McNair and her daughter Mrs. Bennett lived two floors below the Weissman apartment. Defendant claims that their testimony, that they heard shots from the rear of the building (the Weissman apartment was towards the front) on the day of the murder, was suppressed by the People. Again, the questions are presented as to whether there was suppression and whether the evidence was exculpatory.

Mrs. Bennett told the investigators that she dated Mr. Kassow (one of the original lawyers for defendant) and had told him of hearing the shots and of seeing a trunk in the apartment lobby prior to the murder. Mr. Kassow himself testified that Mrs. Bennett had told him of seeing the trunk but when he asked her if she had heard any shots, she replied in the negative.

The testimony is conclusive that, regardless of what Mrs. Bennett Actually told Mr. Kassow, the District Attorney had no reason to believe that he knew anything that defendant did not know. Moreover, the trial court found, and we concur, that these women possessed no exculpatory evidence. The prosecutor and Detective Leman testified that the women told them by word and hand gestures that the shots had come from up and towards the front of the building, which corresponded to the Weissman apartment. The women had little knowledge of guns or gunshots yet they claimed to have heard from the alley three floors below--through an open window--four very loud sounds which scared them and which they were certain came from a gun; this despite the fact that .22 caliber shots make a comparatively small report. The words of the Trial Judge, who had an opportunity to observe these witnesses, best sum up their testimony: 'Taking their credible testimony in the most favorable light, each testified that some time in late September or early October 1963, they heard four to six loud noises which came through their living room window * * * late in the afternoon. I find no basis for believing that they recognized the sounds as gunshots, partly because...