People v. Peller
| Decision Date | 08 December 1943 |
| Court | New York Court of Appeals Court of Appeals |
| Parties | PEOPLE v. PELLER et al. |
OPINION TEXT STARTS HERE
Appeals from Court of General Sessions, New York County.
Mike Peller and Abraham Podinker were convicted of murder in the first degree, and they appealed. The judgments of conviction were affirmed in 290 N.Y. 905, 50 N.E.2d 300, and thereafter reargument was granted in 291 N.Y. 640, 50 N.E.2d 1021.
Judgment of conviction of defendant Podinker affirmed, and judgment of conviction of defendant Peller reversed and new trial ordered.
LOUGHRAN and DESMOND, JJ., dissenting in part. Harry G. Anderson and Samuel Bader, of New York City, for Mike Peller, appellant.
James D. C. Murray and Daniel Kirchman, of New York City, for Abraham Podinker, appellant.
Frank S. Hogan, Dist. Atty., of New York City (Stanley H. Fuld and Richard G. Denzer, both of New York City, of counsel), for respondent.
The appellants, Peller and Podinker, appeal to this court from a judgment of death entered upon their convictions of the crime of murder in the first degree.
On the evening of September 6, 1928, the body of Jacob Weinberg was found in the cellar areaway of 166 Suffolk Street in the city of New York. Death had been caused by one of four bullets which were found in the deceased's head. In March 1942, the appellants were indicted, together with David Popek, for Weinberg's murder. At the trial Popek testified for the People and his testimony, corroborated by the testimony of Sidney Newburg and Jack Lieberman, constituted the chief basis for the verdict of guilt.
Popek had been previously convicted of nine different crimes. He testified that, a few days before the killing, he had been in the company of the two appellants in Peller's apartment, where all three were smoking opium. In the course of conversation Peller, a dealer in narcotics, remarked that he was having ‘trouble’ with one of the men who used to work for him, whereupon Podinker volunteered ‘to take care of it any time you say so’. Peller deferred decision for the time being, and on the next day all three again met in Peller's apartment. On that occasion, Peller declared that Weinberg (the deceased) had been stealing his opium customers and told both Popek and Podinker that if they would ‘take care of that’ he would turn certain opium business over to them. Podinker then promised that Weinberg would be killed whenever Peller would ‘say the work.’ On the next day, which was September 5, 1928, both Popek and Podinker set out to find a building with two exits so that they could ‘go in one way and come out another way.’ The building at 166 Suffolk Street was then chosen.
All three then met again in Peller's home on September 6th, where Peller instructed Popek and Podinker to kill Weinberg ‘right away.’ That evening the deceased was lured into the cellar of the building, where Podinker killed the deceased with a revolver borrowed for the purpose by Popek. Popek and Podinker then made their exit through the rear of the building and proceeded to Peller's apartment where they told him what they had done.
Two witnesses Lieberman and Newburg were called to corroborate the accomplice, Popek. These three witnesses, upon whose testimony the convictions in this case depend, were of the most disreputable character and there is little to choose among them. The jury would have been entirely justified in rejecting their testimony as unworthy of belief. Their testimony was opposed only by denials of the defendants, whose characters, associations and activities were no better than those of their former associates who testified against them. Thus the case turned upon credibility of oral testimony of highly questionable quality which was in irreconcilable conflict. By its verdict the jury has given credence to the People's witnesses and has rejected the defendants' denials.
Was the testimony of the accomplice corroborated by other evidence which tended to connect the defendant with the commission of the crime? Code Crim.Pro. s 399. If there was such corroboration, was the verdict against the weight of the evidence? Code Crim.Pro. s 528. If there was corroboration and the verdict was not against the weight of the evidence, was the verdict of the jury influenced by errors which may not be disregarded, though no exceptions were taken, and which are of such a character as to require a new trial in the interest of justice? Code Crim.Pro. s 528. These are the questions which confront us.
Upon the preliminary question we are not concerned with credibility at all. The statutory test is whether the evidence offered in corroboration has a tendency to connect the defendant with the commission of the crime, and the testimony of a thoroughly discredited witness to an oral admission of the accused, having a tendency to connect him with the commission of the crime, is sufficient corroboration to meet the statutory requirement. People v. Buchalter, 289 N.Y. 181, 45 N.E.2d 225. Lieberman's testimony directly connected the defendant Podinker with the commission of the crime, for he testified that he saw Jocko (the deceased) on Suffolk Street at about eight o'clock in the evening of the day of the murder in the company of Popek and Podinker. He testified:
‘I said, ‘Hello, Jocko, I want to see you,’ * * * He told me, ‘I will be right back.’ * * * he wasn't alone. * * * He was with David Popek and Schtunky (Podinker).
The building the three men entered was where Weinberg's body was found, and the testimony of Lieberman directly corroborated the account of his killing by Podinker in the area at the rear of the building.
Lieberman also testified to a conversation with Podinker and Popek in a restaurant on the evening of the day following the murder, when Popek told him in the presence of Podinker: ‘Jocko had it coming to him because he was taking a lot of trade away from Whitey Heller (Peller)’, saying he expected Peller to put him and Podinker on the payroll at fifty dollars a week. Lieberman said that Podinker then told Popek to ‘keep his big mouth shut because everybody knows about it in the neighborhood.’
Sidney Newburg also testified that he and Popek and Podinker, three or four days after the murder, went to his apartment in Ridge Street to smoke opium and that they had a conversation relating to Weinberg, that Popek did most of the talking and ‘he was blaming Whitey for calling Whitey a few names for only giving him ninety dollars for killing Jocko, and he promised much more, and he said that he would get the rest of it, that Whitey had a ring, and this and if necessary he would go up and take the ring from him.
‘The Court: Well, what were they?
With relation to the defendant Peller, Sidney Newburg testified that about noon on the day Weinberg was killed, September 6, 1928, he came through Norfolk Street on his way to the candy store and Jocko came out of a moving van place next to the store and asked him what he wanted; that he told Weinberg he wanted three, meaning tins of opium. Jocko went back into the moving place and came out with three tins. As he did, Peller came out of the candy store and started ‘jumping on’ Jocko, calling him foul names and saying: ‘What the hell do you think I am doing, building up a trade for the likes of you around here?’ The argument was heated, Jocko insisted that he was not stealing any customers and that it was anybody's trade, to which Peller replied: ‘This is the last customer of mine you'll ever take.’ Peller then started ‘bawling’ Newburg ‘out’ for buying from Jocko. Newburg told Peller that he was not responsible for that, that he didn't know that Jocko wasn't working for Peller, that he didn't come around looking for Jocko, that he came around looking for Peller and thought Jocko was working for him. He left the two men still arguing.
This angry altercation and the remark of Peller, which could only have been intended and understood as a threat, were so closely connected in point of time with the murder of Weinberg as to have a potent tendency to connect Peller with the commission of the crime.
With relation to Peller, Lieberman...
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