People v. Lipsky

• Decision Date: 14 December 1982
• Citation: 57 N.Y.2d 560,457 N.Y.S.2d 451,443 N.E.2d 925
• Parties: , 443 N.E.2d 925 The PEOPLE of the State of New York, Appellant, v. Leonard LIPSKY, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 451

457 N.Y.S.2d 451

57 N.Y.2d 560, 443 N.E.2d 925

The PEOPLE of the State of New York, Appellant, v. Leonard LIPSKY, Respondent.

Court of Appeals of New York.

Dec. 14, 1982.

Donald O. Chesworth, Jr., Dist. Atty., Rochester (Kenneth R. Fisher, Rochester, of counsel), for appellant.

Edward J. Nowak, Public Defender, for respondent.

OPINION OF THE COURT

MEYER, Judge.

The proscription of CPL 60.50 against conviction solely upon evidence of a confession or admission without pro that the offense charged has been committed does not require direct proof, other than the confession or admission, of death or criminal agency. Although the body of the victim is never found and there is no direct evidence, other than the confession, that the defendant caused the victim's death, a jury question is presented by circumstantial evidence calculated to suggest that the victim is dead and implicating defendant as the criminal agency, the key to which is furnished by the confession or admission. The order of the Appellate Division should, therefore, be reversed and the verdict should be reinstated.

I

The question at issue being the sufficiency of the evidence to sustain the jury's verdict finding defendant guilty of murder in the second degree, the evidence is to be viewed in the light most favorable to the People. What follows is a recital of the evidence as so viewed.

Mary Robinson, a lifelong resident of Rochester, was last heard from at 1:30 a.m. on June 10, 1976. Married to Larry Robinson in October, 1971, she had worked as a telephone solicitor for about a year and then as a waitress until, following her father's death in 1974, she inherited an interest in seven houses. Thereafter she collected the rents and took care of the maintenance of the houses. For about a year and a half before her father's death, Mary's sister, Frances, lived with Mary and her husband. In 1973, Larry Robinson began living as husband and wife with Frances and told Mary he did not wish to continue such a relationship with her. Mary, nevertheless, remained in the same living quarters with Larry and Frances. In early June, 1976, Larry and Frances began working at a massage parlor and in order to be closer to where they worked moved from the apartment in which the three of them were then living to a hotel. Frances was working as a prostitute. Mary, who had again been working as a waitress, was told by Frances and Larry what they were doing and she also started in early June, 1976, working as a prostitute, mainly at several downtown Rochester hotels. Although she had remained in the apartment in order to close it up, she was going to move in with Frances and Larry wh that was done. Larry testified that he was in daily contact with her and that her emotional and physical condition was good.

Between 6 and 7 p.m. on June 9, 1976, Larry received a call from Mary and at 8:30 p.m., he and Frances met and spoke with Mary in the park near the two hotels she frequented. She was wearing her glasses, a dress, a light jacket and white sandals and was carrying a white purse. Larry and Frances then returned to their hotel room. At 1:30 a.m. on June 10, Larry had a 5 to 10 minute telephone conversation with Mary. When he had not heard further from her by about 3 a.m., he and Frances went looking for Mary, checking with the security guards at the two hotels. When she had neither called nor come to their hotel by 7:30 a.m., Larry and Frances went to the apartment. They found no one there but found nothing missing from it other than the glasses and clothing she wore, the purse she carried when they met in the park the night before and the reddish plaid wallet she carried in her purse. Mary's mother had died giving birth to her and the wedding picture of her mother and father which she always kept at her bedside was in its regular place on the nightstand in her bedroom. Larry and Frances remained at the apartment until 11 a.m. the next day, June 11, and then reported Mary to the police as a missing person. Neither Larry nor Frances, nor Mary's sister-in-law and mother-in-law, all of whom saw her frequently before June 9, have had any contact with her since, nor was any money paid into her Social Security account after the quarter ending in June, 1976, nor any claim for benefits made against the account.

Defendant Lipsky was an accounting student at Monroe Community College in Rochester in 1976, and was living in an apartment at 77 Brooks Avenue. In April, 1976, he became engaged to Marsha Hanrahan and when the gas and electricity was turned off at 77 Brooks Avenue, he moved into her apartment. On June 1, 1976, Ms. Hanrahan left Rochester for Cape Cod where she stayed until June 14 or 15. Her relationship with defendant was not going well when she left. When she returned to Rochester, defendant was at her apartment but seemed upset and emotional overwrought, and at times cried. He told her he wanted to go to Arizona and work at his parents' motel and asked her to come. Shortly thereafter he left. Ms. Hanrahan did not go with him, but she did go to the 77 Brooks Avenue apartment to help him clean it up, pack the things he wanted to take and discard the things he did not want. While doing so she found in a cupboard in the room across the hall from defendant's room a purse, some white sandals and some girls' socks. Inside the purse was a pair of wire frame glasses and a red plaid wallet in which was a police identification card bearing a photograph and the name of Mary C. Robinson and some family pictures. She asked defendant whose the articles were and he replied that they belonged to a former tenant and had been abandoned. He told her she could keep them, which she did, asking a number of friends whether they had ever seen the girl identified by the police card. Defendant left Rochester for Arizona a few days later.

In August, 1978, defendant, who had married in the interim, was working in Provo, Utah, for a distribution company. On October 16, 1978, as the result of an incident that occurred on the campus of Brigham Young University, defendant was arrested for aggravated assault. He pleaded guilty and was ordered held pending presentence evaluation. During a conference with the psychiatric social worker in January, 1979, defendant told him that he had committed a previous crime which he wished to clear up. Warned that his statements could not be kept confidential and after discussing the matter with his wife, defendant met with the social worker and his probation officer on February 7, 1979, and informed them that he had murdered a woman, that she was a prostitute whom he had paid to have intercourse with him, but that he became angry when she wanted to leave and attacked her and then strangled her for fear that someone in her family might retaliate against him. Questioned as to the name, date and place, he wrote on a legal pad: "Mary Robinson, June 14, 1976, Rochester, N.Y.", and gave the place in Rochester as his apartment at 77 Brooks Avenue. Asked what he had done with the body, defendant said he had placed it in t trunk of his car and driven three hours to a point south of Rochester, where he dumped the body down a gully.

After the Rochester police were notified by Utah authorities, the Rochester Democrat and Chronicle carried an article on the matter including a photograph of Mary C. Robinson. As a result Ms. Hanrahan turned over to the Rochester police the articles defendant had given her when his apartment was cleaned out, all of which were introduced at trial and identified by Larry Robinson as belonging to Mary Robinson. The People also presented testimony of two of defendant's co-workers at the Provo distribution company that on separate occasions defendant had stated that he could not join the Mormon church because he had killed someone. The first, who testified to a conversation at the warehouse, asked defendant what was the reason, to which defendant responded that he was afraid he would be caught and so, though he considered backing out, had gone through with it. The second, who testified to a conversation at his own apartment, asked why he was being told about such things, to which defendant responded: "well, go ahead and try to pin it on me, you can't because there isn't a body so there wouldn't be any evidence."

Also introduced was a poem written by defendant, found during a consensual search of defendant's apartment by the Utah police after the October 16, 1978 arrest, which read (punctuation added):

"To crush out a life with a hand or a heel;

"To be carelessly senseless and not even feel;

"To treat one as nothing and not even real;

"To be as a jackal, a thief who did steal.

"I was such a man, and it's a part of me now.

"I was such a fool and can't even tell how I did such a thing.

"Now, it weighs on my brow and I think of the peace such an act won't allow.

"But still I live on and remember it well.

"Yet still I must live to remember the hell.

"I can never let go of the body that fell, and it tears me to pieces where my thoughts on this dwell.

"I can never be free of this feeling inside.

"I will never be able to successfully hide.

"And there is no way to share the tears that I've cried.

"So I now live for two; by my hand one has died."

In addition to the confession and admissions, the People's case included testimony of defendant's former roommates at 77 Brooks Avenue, that they had never met Mary Robinson or seen the articles found by Ms. Hanrahan; of defendant's landlord at that address, who testified Mary Robinson had never been a tenant there, that he cleaned out the apartment before defendant moved in and did not see those articles and that though defendant was obligated to give him a month's notice prior to moving he gave only a week to 10 days' notice; of several witnesses that Mary Robinson wore the wire frame glasses all the time and could not see well without them; and of unsuccessful efforts of the New...