People v. Fein

• Decision Date: 19 October 1965
• Citation: 24 A.D.2d 32,263 N.Y.S.2d 629
• Parties: The PEOPLE of the State of New York, Respondent, v. Mark FEIN, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 629

263 N.Y.S.2d 629

24 A.D.2d 32

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

Supreme Court, Appellate Division, First Department.

Oct. 19, 1965.

Louis Nizer, New York City, of counsel (Robert Arum, Paul Martinson, Harold Klapper and George Berger, New York City, with him on the brief; Phillips, Nizer, Benjamin, Krim & Ballon, New York City, attorneys), for appellant.

Eric A. Seiff, New York City, of counsel (H. Richard Uviller, New York City, with him on the brief; Frank S. Hogan, Dist. Atty.), for respondent.

Before BREITEL, J. P., and RABIN, EAGER, STEUER and WITMER, JJ.

STEUER, Justice.

In the early morning of November 8, 1963, Fred Petraca, a stationary engineer who operated the Spuyten Duyvil Drawbridge of the New York Central Railroad noticed a body floating in the Harlem River. The body was later identified as the remains of Rubin Markowitz, a parttime grocery clerk whose main occupation had been the booking of bets on sporting events. Investigation revealed that the deceased was last seen by his family on the morning of October 10, 1963, and the last known contact with him was a telephone call to one of his customers at 4 o'clock that afternoon.

Further investigation developed that the deceased did a large part of his bookmaking business by telephone. For this purpose he employed an answering service. The procedure was for the customer to call the service and leave a telephone number at which he could be contacted. Markowitz called the service at half hour intervals, received the numbers and made the calls. In these arrangements the customers were given fictitious names. One of these names was 'Shore' and the telephone number was that of an apartment at 125 East 73rd Street. The tenant of this apartment was a Mrs. Carmela Lazarus. She was a woman with an extraordinary number of aliases, who at the time was known as Gloria Kendal. It was through her that the prosecution learned of the defendant. And it was through her and by virtue of the information given by her that the defendant was charged with homicide and convicted by a verdict of the jury of Murder in the Second Degree. ¹

The defendant challenges the validity of the verdict and judgment of conviction, advancing some 17 specifications of error. We have examined all of these but find that only six merit discussion. These isx can be conveniently treated under three headings--whether the evidence was sufficient to convict beyond a reasonable doubt; whether the district attorney suppressed exculpatory evidence; and whether the prosecution countenanced false testimony, knowing it to be false, and failed to correct it.

In bare outline, the case of the People was that the defendant, on October 10, at about 5 o'clock in the evening telephoned Gloria Kendal and urgently requested her to come at once to an apartment located at 406 East 63rd Street. Upon her compliance he told her he had killed Markowitz and exhibited his body, which was resting in a trunk. At defendant's suggestion she procured the services of two friends, and the three of them took the trunk in a station wagon to the end of Dyckman Street at the Harlem River and dropped the trunk into the river.

There is no contradiction of the testimony giving this sequence of events, but defendant challenges it on the grounds of inherent improbability, variance with physical and known facts, and the unreliable character of the testimony used to establish it.

The first argument rests on the character of the defendant. It appears that he is a business man, married and the father of three children. He and his family lived in very comfortable circumstances, and he was possessed of substantial resources. He had no prior criminal record and no history of violence was established. It is claimed that it is highly improbable that one so circumstanced would engage in a homicide where the only suggested motive was to escape payment of a debt of some $7,000.

The reverse of this picture must also be considered. Defendant had long been addicted to betting substantial sums with bookmakers. He also indulged in extensive association with prostitutes. It clearly appears that he not only contributed largely to the support of the Kendal woman, he also maintained the 63rd Street apartment for extra-marital activities. While these activities might have been well within the limits of defendant's financial competence, there was evidence that on occasion he did borrow to meet his expenses for this double life. Money difficulties were therefore not entirely to be ruled out. Nor did the prosecution's case rest on the motive of robbery. This was merely advanced as a possible explanation. The jury might well have found that the defendant, having chosen to inhabit the half world that he did, would be subject to the stresses, and the methods of relieving them, that are more common to its denizens than to those whose activities conform more strictly to conventional standards.

The defendant advances several grounds for claiming that the physical facts belie the narration of events by the prosecution witnesses. We will consider these separately. The testimony was that, after the trunk containing Markowitz' body was loaded on the station wagon, the vehicle was driven to the 73rd Street apartment, where Miss Kendal got out and went to her apartment. The station wagon remained parked in the street. The two persons remaining with it estimate the time that they waited for her as between 30 and 45 minutes. She places it at far less--about 10 minutes. The seriousness of this incident lies in the claim that a bleeding body would be liable to attract attention and that Miss Kendal's assistants would never have taken such a risk. To counteract this, there is no proof that the body was bleeding at the time, and some hours after death it does not appear that it would be. Furthermore, the testimony was that defendant stated that he had placed canvas bags in the trunk to absorb any blood and prevent leakage. Lastly, it was for the jury to say whether people who would undertake an enterprise of this nature would be so worried about such a contingency that they would not possibly have waited for this period of time.

Next it is claimed that it was a physical impossibility for these three to have lifted the trunk out of the station wagon and to have dropped it over the wall which borders Dyckman Street. Markowitz in life weighed about 185 pounds. There is no proof of the weight of the trunk, but for the purposes of this argument we will assume that the claim that it weighed 50 pounds is sufficiently accurate, thus making the total weight about 235 pounds. The wall in question is abolut four feet high. The proof of the lifting and carrying is not particularly detailed. The three people involved were: Miss Kendal, five feet seven inches tall and weighing about 135 pounds. She describes herself as a particularly strong woman. Broudy, the only man taking part, was an inch taller, and weighed 165 pounds. He had been a taxi driver for most of his adult life. Miss Boxer's dimensions do not appear, and the record is not consistent as to how much assistance she lent the other two. In view of the very short distance the trunk would have to be carried (about 7 or 8 feet) and the fact that in the lifting a portion of the weight could be made to be borne by the wall itself by canting the trunk, plus the fact that the jury had ample opportunity to judge the strength of these persons, we believe that it cannot be said that this testimony represented a physical impossibility.

The defendant also contends that if the trunk were dumped into the river at 179th Street on October 10, the body could not have been found on November 8 at Spuyten Duyvil, some three miles away. Admittedly, the record is barren of any scientific proof as to whether or not these facts are physically inconsistent. The point was never raised until after the trial. ² From the testimony in the case, it did happen, and there is nothing to show in this highly controversial area that it could not have happened.

Finally on this phase of the argument the defendant points to the absence of any evidence of blood on the furniture or walls of the 63rd Street apartment. From the medical testimony it is fairly conclusive that the deceased must have shed a considerable quantity of blood. None of the three witnesses who were in the apartment on the evening of October 10 saw any blood on the furniture, and an examination of the furniture disclosed only one minute speck on a chair. This speck was so small that it could not be typed. As proof that the homicide took place in the apartment, it can be disregarded. However, there was evidence that a section of the carpet had been cut away prior to the arrival of the witnesses at the apartment and the resulting strips of material were in a duffle bag. This bag was taken in the station wagon along with the trunk, and similarly disposed of.

We conclude that these facts do not demonstrate that the homicide could not have occurred in the apartment, nor that the narration of facts by the People's witnesses is factually impossible. It is true they raise issues but in no sense do they preclude a finding that no reasonable doubt existed.

We come now to the question of the reliability of the testimony. It is not disputed that Mrs. Lazarus or, as she was generally referred to on the trial, Gloria Kendal, was a completely amoral person who could well merit the defense's description as a depraved character. It has, however, often been recognized that crimes in the category here under review are seldom committed in the presence of reliable and substantial witnesses. Either such crimes must go unpunished or the jury must be allowed to make a determination that on this occasion the testimony reflects what actually happened (see People v. Peller, 291 N.Y. 438, 446, 52 N.E.2d 939, 942). Such a determination most...