People v. Goldfeld

• Citation: 400 N.Y.S.2d 229,60 A.D.2d 1
• Parties: PEOPLE of the State of New York, Respondent, v. Morris GOLDFELD, Appellant.
• Decision Date: 09 December 1977
• Court: New York Supreme Court Appellate Division

Page 229

400 N.Y.S.2d 229

60 A.D.2d 1

PEOPLE of the State of New York, Respondent, v. Morris GOLDFELD, Appellant.

Supreme Court, Appellate Division, Fourth Department.

Dec. 9, 1977.

Paul R. Shanahan and Philip Hillsberg, Syracuse, for appellant (Paul R. Shanahan, Syracuse, of counsel).

Richard A. Hennessy, Jr., Dist. Atty., Syracuse, for respondent (William Fitzpatrick and John A. Cirando, Syracuse, of counsel).

Before CARDAMONE, J. P., and HANCOCK, DENMAN and WITMER, JJ.

CARDAMONE, Justice Presiding.

In the space of two years, 32 fires occurred in 24 separate buildings, 21 of which were owned by appellant, Morris Goldfeld, in the City of Syracuse. Several of the properties burned on more than one occasion, one burned four times. As a result, the Onondaga County Grand Jury handed down a 66-count indictment charging Goldfeld, and two co-defendants, George Giordano and Glen Milyon, with the crimes of arson in the second degree (20 counts), arson in the third degree (12 counts) and conspiracy in the second degree (34 counts). Upon appellant's motion the trial court granted severance of appellant's trial from the co-defendants.

The first 64 counts of this 66-count indictment relate to the 32 fires that occurred between May 26, 1973 and June 24, 1975 in which appellant was charged either with arson in the second degree or arson in the third degree and conspiracy in the second degree. The remaining two counts (counts 65, 66) charge the appellant with conspiracy, second degree, in connection with two premises where no fire occurred. The prosecution contends that appellant conspired with Giordano who arranged for Milyon and others to burn certain properties owned by Goldfeld, enabling him to collect fire insurance proceeds. At the trial the prosecution offered testimony demonstrating proof of ownership by appellant of the properties in the indictment; testimony by tenants of the properties concerning the various fires that occurred; testimony by fire department investigators regarding the incendiary nature of the fires; evidence that the appellant did receive insurance proceeds as a result of the fires; extensive testimony by Giordano chronicling the scheme to burn appellant's buildings; and two tape recordings of conversations between Giordano and the appellant.

Following a six-week trial, the jury returned verdicts finding appellant guilty as charged on 63 of the 66 counts. On two counts where he was charged with arson, second degree, appellant was found guilty of arson in the third degree (Counts 3 and 63) and he was acquitted on one count of conspiracy in the second degree (Count 65). Appellant was sentenced to concurrent terms of imprisonment with a minimum of six years and a maximum of 25 years on each of the 18 counts of arson in the second degree; an indeterminate term with a maximum of 15 years on each of 14 counts of arson in the third degree; an indeterminate term with a maximum of four years on each of 33 counts of conspiracy, second degree. Fines totalling $288,710 were also imposed upon appellant.

On this appeal appellant raises six points for us to review. He contends that the trial court erred in (1) denying appellant's motion to dismiss the indictments on the ground that, as a matter of law, there was insufficient proof of corroboration of the accomplice's testimony; (2) failing to marshall the evidence for the jury to the extent necessary to "explain the application of the law to the facts" as mandated by CPL § 300.10(2); (3) receiving in evidence over appellant's objection the tape recordings of alleged conversations between appellant and Giordano; (4) denying appellant's motion for mistrial based upon the unauthorized and prejudicial telephone communications with several of the jurors; (5) permitting the principal prosecution witness to testify from a copy of a bill of particulars prepared by the prosecution and (6) invalidly imposing fines in contravention of section 80.00 of the Penal Law. We find no error committed by the trial court with respect to any of these contentions. Because of the complex nature of this case and the evidentiary problems which it raises, we shall discuss each contention.

Appellant asserts that the indictments should have been dismissed as a matter of law at the close of the evidence on the ground that there was insufficient proof of corroboration of the accomplices' testimony. Whether there is sufficient corroborating evidence to go to the jury is a question of law for the court; whether the testimony of the accomplice is sufficiently corroborated is one of fact for the jury (People v. Fiore, 12 N.Y.2d 188, 201-202, 237 N.Y.S.2d 698, 705-706, 188 N.E.2d 130, 135-136). In order for the trial court to submit the question of guilt to the jury, it must be satisfied that there is some evidence corroborating the accomplices' testimony which fairly tends to connect the appellant with the commission of the crime (CPL § 60.22(1); People v. Morhouse, 21 N.Y.2d 66, 286 N.Y.S.2d 657, 233 N.E.2d 705; People v. Kampshoff, 53 A.D.2d 325, 385 N.Y.S.2d 672). The required evidence may be direct or circumstantial (People v. Mullens, 292 N.Y. 408, 55 N.E.2d 479). The corroborative evidence need not lead exclusively to an inference of appellant's guilt; nor must it "exclude to a moral certainty every hypothesis but that of wrongdoing. The test is less rigid" (People v. Kohut, 30 N.Y.2d 183, 193-194, 331 N.Y.S.2d 416, 425, 282 N.E.2d 312, 318; People v. Kampshoff, 53 A.D.2d 325, 332, 385 N.Y.S.2d 672, 678). As the Court of Appeals has stated, "even matters which in themselves may be of 'seeming indifference', so harmonize with the accomplice's narrative as to have a tendency to furnish the necessary connection between the defendant and the crime" (People v. Daniels, 37 N.Y.2d 624, 629-630, 376 N.Y.S.2d 436, 440, 339 N.E.2d 139, 141, quoting from People v. Morhouse, 21 N.Y.2d 66, 74, 286 N.Y.S.2d 657, 662-663, 233 N.E.2d 705, 709 and People v. Dixon, 231 N.Y. 111, 116-117, 131 N.E. 752, 753-754). However, the corrobative evidence must do more than simply show that the crime was committed. It must tend to show that the defendant was implicated in its commission (People v. Nitzberg, 287 N.Y. 183, 191-192, 38 N.E.2d 490, 494-495) and connect the defendant with the crime in such a way that the jury may be reasonably satisfied that the accomplice is telling the truth (People v. Daniels, supra, 37 N.Y.2d at 630, 376 N.Y.S.2d at 441, 339 N.E.2d at 142; People v. Dixon, supra, 231 N.Y. at 116, 131 N.E. at 753-754).

Appellant further urges that each charge must be considered separately in passing upon the issue of corroboration of the testimony of the accomplice and that each and every charge must be independently corroborated. Generally, where the principal witness is an accomplice, corroboration of his testimony is necessary on each separate count of the indictment (People v. Malizia, 4 N.Y.2d 22, 171 N.Y.S.2d 844, 148 N.E.2d 897; People v. Mullens,292 N.Y. 408, 55 N.E.2d 479). Where, however, a common scheme or plan is established which includes the crimes charged, evidence corroborating the accomplice's testimony as to one crime may be used to implicate the defendant with the other crime contained in a separate charge. While the similarity of the separate crimes is insufficient by itself to connect appellant with the crimes, "if the connection between the crimes is coupled with the connection between appellants and one of the crimes, there results a connection, albeit an indirect one, between appellants and the other crime. This indirectness is a matter to be considered by the jury when weighing the sufficiency of the corroborative evidence" (People v. Chamberlain, 38 A.D.2d 306, 311, 329 N.Y.S.2d 61, 67).

In People v. Luciano, 277 N.Y. 348, 362, 14 N.E.2d 433, 437) "(t)he similarity between the crimes was so striking that the inference that they were connected together or parts of a common scheme is well nigh inescapable". A mere reading of the indictment and examination of the proof in the instant case inescapably leads us to conclude that for appellant to have 21 of his buildings burned in 29 separate incendiary fires within two years could not be mere happenstance of a coincidental nature. Rather, the fires, as the proof reveals, were of a similar pattern, i. e., every one commenced in an uninhabited portion of the building, and not to believe that they were part of a common scheme or plan defies belief.

Aside from accomplice Giordano's testimony, the prosecution offered independent evidence which it claims tends to connect appellant Goldfeld with the crimes charged. Included is proof of appellant's ownership of the properties, the incendiary nature of each of the 32 fires, the fact that appellant collected insurance proceeds from 25 of the 32 fires, the fact that many of the burned premises had numerous housing code violations pending against them and that some of the fires broke out on the premises shortly after appellant received notice of the violations, and that appellant Goldfeld had access to keys to the uninhabited apartments where the fires occurred and that following the fires tenants testified that previously locked doors were found unlocked. The most persuasive corroborative testimony, however, was the tape recordings of the conversation between the accomplice Giordano and the appellant Goldfeld (Exhibits 102, 103). We have listened to the tapes in the same manner as they were heard by the jury and find them audible and, in fact, some portions which the transcript denotes as inaudible are intelligible. After hearing the tapes we are thoroughly convinced of their inculpatory nature. The taped conversations clearly reveal appellant Goldfeld's knowledge of and participation as the moving force in the conspiracy to commit arson. The evidence necessary to corroborate an accomplice may be supplied by the appellant himself (People v. Burgin, 40 N.Y.2d 953, 390...