People v. Malinski

• Decision Date: 20 April 1944
• Citation: 292 N.Y. 360,55 N.E.2d 353
• Court: New York Court of Appeals Court of Appeals
• Parties: PEOPLE v. MALINSKI et al.

292 N.Y. 360

55 N.E.2d 353

PEOPLE

v.MALINSKI et al.

Court of Appeals of New York.

April 20, 1944.

Appeal from Kings County Court; Leibowitz, Judge.

Morris Malinski and others were convicted of murder in the first degree, and from judgments of the Kings County Court named defendant and a certain other defendant appeal.

Affirmed.

LEHMAN, C. J., and LOUGHRAN and RIPPEY, JJ., dissenting. David F. Price and Joseph Solovei, both of Brooklyn, for Morris Malinski, appellant.

John J. Fitzgerald, of New York City, Julian V. Carabba, of Brooklyn, and Saul M. Meadow, of New York City, for Sidney Rudish, appellant.

Thomas Cradock Hughes, Dist. Atty., of Brooklyn (Henry J. Walsh, of Brooklyn, of counsel), for respondent.

CONWAY, Judge.

The two defendants and one Joseph Indovino were convicted of the crime of murder in the first degree. As to Indovino, the jury recommended life imprisonment and his case is not now before us.

The deceased, Leon Fox, was a police officer of the city of New York who was accompanying the manager of a theater to a branch bank in Coney Island so that the receipts of the day might be deposited in the bank receptacle provided for that purpose. The tragedy occurred at about 11 o'clock at night and, since the date was February 15, 1941, and the scene on Surf Avenue in Coney Island, there was practically no one abroad. As the police officer and the manager proceeded toward the bank they neared an automobile which was parked on one of the streets running at right angles to and facing Surf Avenue. One door was open and the front lights had been extinguished. As they passed it, a man jumped from the car, knocked the manager down and shot the officer. The manager dropped the bag upon command, after attempting to run with it. It was picked up and the automobile drove off. The police officer fired some six shots after the departing automobile as he lay upon the sidewalk. None of the robbers was indentified by anyone. Those within the neighborhood testified to the speed and the quick departure of the automobile. One witness did say that he heard in all five or seven shots; that an automobile shot past; that there were three men in it; that the two men in front were short men; that the driver looked as if he could not reach the pedals of the car; that the man in the rear of the car was thin with hair slicked back and that he was bent over.

Ten months passed.

In December of the year of the murder two men were sentenced to a State prison for robbery committed while armed. One of them was David Yellin. He received a sentence of from ten to twenty years. The other, committed three days later in connection with the same crime, was Nathan Spielfogel. He received a sentence of from thirty to sixty years. Spielfogel was the intimate of the defendant Malinski. He was married. As an outgrowth of his intimacy with Malinski and of their criminality together, he and Malinski had agreed that if one went to prison the other would contribute to the support of the family of the one incarcerated. Malinski broke that agreement after partial performance of it.

At the State's prison at Sing Sing Spielfogel ate with a convict named Kovner. Kovner had never known Spielfogel or Yellin before meeting them in Sing Sing. He was intimate, however, with Malinski and Indovino and his close companion was one Ebbie Beitler. Kovner testified that whenever Beitler was in the city the two of them were inseparable. We shall return to Beitler later. Suffice it to say at this point that it was Beitler who gave the signal which led to the shooting of Fox and that Kovner had been with Beitler when the latter was subsequently engaged in an affray in a New York hotel in which Beitler shot one man, attempted to shoot a policeman and then committed suicide. That had occurred on October 28, 1941, and it was thereafter that Kovner was sent to Sing Sing and became one of the trio composed of Yellin, Spielfogel and Kovner.

That was the setting as we approach the end of the second ten-month period succeeding the murder of Fox.

On October 23, 1942, in the early morning, the defendant Malinski was arrested and brought to a leading hotel in Brooklyn and lodged in a room there. Spielfogel was brought to the same hotel. On the following day the defendant Rudish and Indovino were arrested and brought to the hotel. On that same day David Yellin was brought there from Sing Sing prison. Thereafter Malinski, Rudish and Indovino were indicted and put upon trial.

On that trial David Yellin, testifying as a witness, said that on the Tuesday or Wednesday preceding the day of the murder he met Indovino on First Street and Avenue A in Manhattan. He said that Beitler called to him, introduced him to Indovino and asked him to take a message to Spielfogel. The message was that Indovino, the finger man, had a ‘cinch job’ (crime) which could be done at Coney Island and which involved the manager of a theater who took the receipts of the theater to a bank in a neighborhood where there was no one about. When they had finished talking Beitler told the witness to see Spielfogel and tell him that he (Beitler) wished him to join in the commission of the crime and to give to Spielfogel the details. It was there stated that the receipts should total about $1,000. As a matter of fact that estimate was but $230 too high. Indovino stated that he would not go himself because he was too well known in Coney Island. Yellin carried the message that night to Spielfogel but the latter said that he would not take part in anything in which Indovino was concerned. We shall return to the testimony of Yellin later but shall now proceed chronologically with the testimony of others.

Nathan Spielfogel, whose nickname was Slip, testified for the People that Yellin had brought to him Beitler's message and that he was not interested so long as the crime had been suggested by Indovino. He said that Beitler met him the next day and that he again told Beitler that he didn't wish to join with him. He said that Beitler then asked if it was all right to use the ‘pieces' (guns). Spielfogel testified that he told Beitler that he would have to ask Malinski. He testified, ‘I says, ‘Those ‘pieces' don't belong to me’. I told him, ‘Malinski it is up to Malinski. If he wants to give you them, they are yours. I got no part of them ‘pieces'; they are all Malinski's.’ * * * I said, ‘Those ‘pieces' don't belong to me. They are all Malinski's ‘pieces'. If he gives them to you, you got them.‘‘ Beitler was interested because the ‘pieces' were large ones. Apparently there were then seven guns at the store in which Malinski worked. Spielfogel testified that on the following Saturday he had four guns in his possession and put them in the store but again denied that they were his.

Then occurred the robbery and murder, to the circumstances of which reference has already been made. Following it and at about 1:30 a.m. on the morning of February 16th, Malinski arrived at Spielfogel's home without hat or coat. He said he had left his coat at the club but that he had dropped his hat Hershee's hat when he jumped from the automobile when abandoning it. Hershee was one Harry Levine who had given Malinski a hat. A hat had been found under the automobile used in the robbery which had been abandoned on Stillwell Avenue about a block and a half from Surf Avenue. The hat so found, later initialed by Malinski during a confession to which reference will be made, fitted Malinski when he was required to put it on while testifying or the jury could so have found.

Spielfogel said that after he provided Malinski with another hat they went to the Citadel Club where Malinski talked over the crime which had been committed. He said that he met the defendant Rudish in Manhattan at about 9 o'clock and that they picked up Beitler on Houston Street and then drove to Coney Island. They visited a restaurant and then placed the automobile in position near the bank. Beitler stayed on the corner and gave Malinski a signal when the manager and the police officer were approaching. The shooting then occurred. They abandoned the automobile after going a few blocks and Beitler and Malinski took first one cab and then another back to Manhattan. Beitler then told Malinski to go to the club with the money while he went to the store of his aunt and disposed of the guns which had been used. Rudish was to come by train and when all three finally arrived at the club the money was divided. There was a dispute there, at the time of the division of the money, as to the conduct of the robbery, Malinski insisting to Spielfogel that he had done all that he was supposed to do as planned beforehand; that Beitler was supposed to take the money while he (Malinski) ‘took the cop’, whereas Rudish and Beitler were insisting that it had been arranged for Malinski to take the money.

In the course of that conversation as detailed by Spielfogel from the witness stand, Malinski said that he had used the ‘pieces' which Red Tiplet had taken from a locker uptown and he identified them as two .38 calibre pistols and two of .45 calibre and that he and Beitler had each fired two shots. Digressing for a moment and bearing in mind that this story was told by Spielfogel in October of 1942 (he was brought to the city from Sing Sing on October 15, 1942), nearly twenty months after the commission of the crime, it is interesting to note that the District Attorney brought to the trial one Simon Eisler who, at the time of the trial, was a corporal in the United States Army stationed at Tacoma in the State of Washington and who had never been convicted of any crime nor charged with any crime. The testimony of that man as distinguished from that of the convicts who gave testimony against Malinski undoubtedly had great weight with the jury and was very damaging to Malinski. Eisler's nickname was Red Tiplet (a red pigeon). When he gave his testimony he had been in the Army since ...