People v. Malinski , 292 N.Y. 360 ( 1944 )

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 identified 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 January 20, 1941, a period of about two and one half years. He entered the Army therefore about twenty-five days before the murder. He had known the defendant Rudish for fifteen years and the defendant Malinski for about three years. He testified that in the latter part of December, 1940, he had a talk with Malinski at the Citadel Club and that Malinski gave him a ticket to pick up a package in the Terminal and to bring it down to the club. Malinski gave him four dollars and he went uptown, picked the package up and brought it back to the club. Malinski opened it and in the package he saw four pistols: two fountain pen guns and two pistols of .38 calibre. The two .38 calibre pistols were wrapped in stockings. He was asked: "Q. In addition to the fountain pen guns and the two .38's, did you see any other object in the package? A. There were more stockings, but I don't know what was in them." The corporal said that when he obtained the package he had not known what was in it. He also said that he did not know the defendant Indovino. He had known Yellin all his life and he knew Spielfogel and had gone to school with Beitler. At the time of the errand, he lived on the east side of Manhattan about half a block away from the Citadel Club. Curiously enough the witness had never told Spielfogel nor Yellin nor any police officer about the errand on which Malinski had sent him until he was brought from Tacoma on June 12, 1943, a distance of 3,000 miles, five days before he testified on June 17, 1943. It would seem clear that the information as to Eisler could only have come to the District Attorney from Malinski through Spielfogel to Yellin or Kovner in Sing Sing.

We now return to Malinski and Spielfogel at the Citadel Club in those early morning hours after the murder. After leaving the club they went to a restaurant and then to the store where Malinski worked. There the latter left the change in silver which had been taken in the robbery. Then they went to the home of a sister of Malinski where he wished to stay rather than to return to Brooklyn for fear his parole officer might appear. Spielfogel testified that he went in the kitchen of that apartment, took a drink of water and walked back into the hall. A few minutes later he heard Malinski say, "Go back to bed." The two separated at about 4 o'clock that morning.

Again despite the lapse of twenty months as already indicated, the People put upon the stand the brother-in-law of Malinski and the girl in whom Malinski was interested and who was living at that time with Malinski's sister and her husband. Malinski's brother-in-law, Pietro Di Pisa, testified that Malinski came to his home about 1:30 or 2 o'clock in the morning of Sunday, February 16, 1941; that Malinski said he had shot a cop in Coney Island and that he had $200 in his pocket; that Malinski talked to the young girl, Jean Goonan, in the kitchen and that he heard Malinski say to her, "If you don't go back to bed there I give you the same dose as I give the cop." Di Pisa said that he ordered Malinski out. Malinski's sister did not testify in denial of any of this. Di Pisa said that he had not talked with anyone from the police department or from the District Attorney's office until the Tuesday preceding the day on which he testified.

Jean Goonan testified that she was living with the Di Pisas; that on the Sunday morning at about 2:30 she was awakened by a banging on the door and that Malinski came in. She heard him tell his sister that he had shot a cop and that they had obtained about $200 each as a result; that she asked him, "What did you do; shoot a cop?" and that Malinski said, "Get back in bed before I give you the same thing I gave the cop."

We take now the case against Rudish. On February 14, Spielfogel said he talked with Rudish in Manhattan. Rudish asked why Spielfogel was not taking part in the robbery and Spielfogel told him that he didn't like it. Again on Saturday afternoon Rudish made the same inquiry and Spielfogel said that it was because he didn't like the tipster. Rudish then said that he, Malinski and Beitler were going to meet at 9 o'clock that night. On Sunday when Rudish met Spielfogel in the afternoon he said that Malinski had "balled everything up. All he knows how to do is to throw a couple of shots." Rudish said that he had gone to Brooklyn to look for Spielfogel's uncle, whose address Spielfogel had given him the day before in connection with another matter, but had lost the address; that when it was near 9 o'clock he stole the first car he saw and picked up Malinski on 8th Street and Beitler on Houston Street in the Borough of Manhattan. He said that after the robbery, he abandoned the car and went up on the Stillwell Avenue railroad station. He told Spielfogel that it sounded as though all the sirens in New York were in Coney Island. He said they obtained about $220 each and that Malinski received $20 extra because two of his guns were used.

Samuel Kovner, whom we have mentioned before as the convict who ate at Sing Sing prison with Spielfogel, testified that about five days before the murder while accompanied by Beitler he met Malinski and Indovino. Indovino talked of "a piece of work" at Coney Island. Indovino asked Beitler and Kovner whether they cared to undertake it. Kovner took Beitler aside and they talked and then Beitler told Indovino that Kovner was not interested because there was a cop in it. Indovino said he could not go because he was known in Coney Island and Beitler said he would look for a third man. Kovner next saw Beitler and Indovino about the 21st of February, six days after the murder. Indovino then asked Beitler for money. He saw him again two days later. Then Indovino was complaining that Beitler was too quick; that he did not have to shoot the policeman; that it would have been sufficient to put the gun against his back. A few days later he heard Indovino again asking Beitler for money.

In general that was the case presented against the defendants by the People, apart from a four day confession by Malinski which we have not considered, and there was sufficient there if believed to justify the conviction of the defendants of murder committed during a robbery. Counsel have urged upon us, however, that it was error for the court to submit to the jury the confession made by Malinski orally on October 23rd, by word and deed on October 25th and 26th and to an Assistant District Attorney and a stenographer in the early morning hours of October 27th. It is urged that the confession should have been excluded for two reasons. First that the defendant Malinski was not arraigned promptly before a magistrate and second that the confession was obtained by fear produced by threats and assault.

Perhaps, it will be helpful before discussing the law as to those two contentions, if we quote the following in the words from the brief of counsel for Malinski in recounting Spielfogel's testimony: "That while Malinski was being questioned by the District Attorney he talked to Malinski which was about two weeks after he was brought down from Sing Sing. This took place in the Hotel Bossert. Malinski asked one of the lieutenants if he could speak to Spielfogel but the witness would not talk to Malinski. The police officers all said ``Go over and see what he wants' so he and Malinski went into the next room and Malinski said that he knew they had Jake [Rudish] in the next room and that they knew too much already; that he might as well go out there and tell them the rest. That he told Malinski that he was over twenty-one and Malinski then told the lieutenant he would tell the truth but did not want to go to the chair. The lieutenant promised Malinski nothing, saying ``This is a police case. You will have to take your chance,' and Malinski said he would ``like to bring in a Rabbi or a fellow by the name of Nat Math'".

The latter was an Assistant District Attorney. Permission was refused Malinski to see either a rabbi or Mr. Math and he then confessed. That was on Friday, the day of his arrest. It was on the following day, after that confession, that the defendant Rudish and Indovino were arrested.

We shall first consider the question whether, when a prisoner is not brought before a magistrate without unnecessary delay, following his arrest, a confession obtained after such unnecessary delay is admissible at all or must be excluded. This Court has given earnest consideration to that problem in the past and has resolved it in favor of the admission of the confession to be followed by an instruction that it must be disregarded if obtained through fear produced by threats and that, in reaching a conclusion thereon, the jury may take into consideration the circumstance that the confession was obtained while arraignment was illegally delayed. (People v. Mummiani, 258 N.Y. 394;People v. Alex, 265 N.Y. 192.) It seems to us that applicable and convincing reasoning leading to that conclusion was declared with clarity in People v. Defore (CARDOZO, J., 242 N.Y. 13,23, 24, 25). We need not quote at length. There are a few sentences which indicate the reasoning. "We are confirmed in this conclusion when we reflect how far-reaching in its effect upon society the new consequences would be. The pettiest peace officer would have it in his power through overzeal or indiscretion to confer immunity upon an offender for crimes the most flagitious. * * * We may not subject society to these dangers until the Legislature has spoken with a clearer voice. * * * The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Adams case strikes a balance between opposing interests. We must hold it to be the law until those organs of government by which a change of public policy is normally effected, shall give notice to the courts that the change has come to pass." We have made our choice.

It is next urged upon us that the confession should have been excluded as a matter of law because when Malinski was brought to the hotel he was stripped to see if there were any evidences of bullet wounds in view of the fact that the deceased officer had fired after the automobile, following the shooting, and because there was some evidence that at least one shot had struck the car. The stripping of Malinski for that purpose was concededly proper but complaint is made because he was left in his underwear for the greater part of the first day of his stay at the hotel. Malinski said that he was subjected to physical violence. The testimony as to the violence was not very strong. He said among other things that he was struck twice by a lieutenant and once by another police officer, "but not too hard" by the latter. "Not hard enough to throw me over. I was sitting in one of the armchairs." His lips were not cut; his nose did not bleed; his mouth bled on the inside. Such was Malinski's testimony. He did not complain to the prison doctor because he "didn't have no injuries." There was no testimony as to violence except by Malinski. Neither Rudish nor Indovino claimed to have been assaulted although in the same hotel with the same officers. Neither of them confessed to the police or District Attorney. Whether the confession therefore was induced by fear produced by threats and violence was for the jury to determine. They weighed his testimony as to the violence and they considered the fact that he was compelled to spend most of one day clothed in his underwear and a blanket and the excuse of the police that that was a way to prevent escape in the hotel. Whether these latter circumstances would produce fear so that a man would confess his crime would depend a great deal upon the type of man involved. We do not think it can be held as a matter of law that it brought about such fear that the confession followed. All those questions it seems to us were for the jury which saw Malinski and heard him. They were in a position to judge from his appearance and attitude what effect depriving him of his outer clothing would have upon him.

It is next urged upon us that the Assistant District Attorney gave his views as to the reason why Malinski was left in his underclothes and we are asked to reverse because of that. The three defendants on trial were represented by experienced counsel. It is true the Assistant District Attorney made the statements quoted in the dissenting opinion. The summation covers sixty-three printed pages. The first quotation is twenty-nine pages before the second. The District Attorney was interrupted by counsel fourteen times. Nearly all of those objections were made by the attorney for Malinski. Yet no interruption by objection was made to the remarks quoted. That is no excuse for the remarks but it is some indication of the fact that none of the counsel took them seriously. The remarks were indefensible. Whether under the circumstances a new trial should be ordered for Malinski because of these disconnected and disjointed utterances which at the time of their utterance brought not a single one of the counsel to his feet to make objection, is a matter of judgment. Our judgment is that the verdict should stand and be affirmed. Even apart from the fact that it did not appear important enough to counsel to cause them to register an objection immediately, the effect of the utterances it seems to us would inure to the benefit of Malinski rather than against him and they did not relate to Rudish or Indovino.

When we have spoken of Malinski's confession we include, of course, not only the confession made orally to a police officer on the Friday night of the arrest but also the two automobile trips on Sunday and Monday, one to the police garage to permit Malinski to identify the automobile used in the crime and the other to Coney Island to revisit a restaurant and the scene of the crime, and the confession to the District Attorney which was taken stenographically in the early morning of Tuesday, October 27th.

On the question of arraignment without unnecessary delay the court charged as follows: "Lieutenant McNally claims that he was willing to arraign Malinsky before a Magistrate on the very day, namely, Friday, when Malinsky was first brought to the Bossert, but that Malinsky stated that he would rather stay at the hotel with his friend Spielfogel than be thrown into a cell in a police station.

"Be that as it may, I charge you that it was the duty of the police to arraign the defendant before the nearest Magistrate without unnecessary delay, and, further, that if a police officer failed or refused to perform such duty, he is guilty of a misdemeanor.

"But, gentlemen, you will bear in mind that the police department is not on trial in this case. This testimony was adduced solely on the question as to whether or not the alleged confession later made was the result of the coercion, either direct or implied, which is prohibited by the statute, and which invalidates a confession if made. If you should find that the arraignment of the defendant was delayed, you may consider that on the question of the voluntariness of any confession made by Malinsky, including the one made in the early hours of October 27th at the Bath Beach station house."

On the question of whether the stenographically transcribed confession of Malinski to an Assistant District Attorney should be accepted by the jury, the court charged as follows: "Although Malinsky does not deny that he made this confession, his contentions are:

"That the confession is valueless as evidence against him because it was made by him due to force and intimidation and fear visited upon him by the police authorities, and implied coercion because of the manner in which they kept him in custody from the time of his apprehension until he made this confession. You must find beyond a reasonable doubt that this confession was a voluntary one before you would have the right to consider it.

"Malinsky then urges a second objection to this confession. His claim is that the statements contained in this confession implicating him in this crime are untrue.

"Under the law, therefore, you will determine, first whether or not this confession is voluntary. If you find it was involuntarily made, or if you have a reasonable doubt about it, then you will disregard the confession entirely. On the other hand, if you find beyond a reasonable doubt that the confession is a voluntary one, you will then determine whether or not the statements inculpating the defendant, therein contained, are true. If you shall have resolved both of these questions in favor of the prosecution, then and only then will you consider the confession in determining the guilt or innocence of the defendant of the crime of murder in the first degree."

We have gone to this length in setting out the facts because it seemed to us necessary to indicate that the most serious of crimes against duly constituted authority had been committed without witnesses; that it was an unsolvable crime if dependence were to be placed upon witnesses or clues; that fate decreed that there should be gathered and thrown together in Sing Sing prison three men who knew of the crime and one of whom, Spielfogel, who knew the most about it, was depending for his wife's support upon one of the active participants in the crime. It is quite evident that when Malinski proved faithless to his agreement, that Spielfogel unburdened himself to Yellin and Kovner but with no intention of acting against Malinski for, curiously enough, testimony is in this record that, after knowledge of what had occurred in the shooting of Fox reached the police department and a lieutenant of police was sent to Sing Sing prison to interview Spielfogel, he refused to talk to the police officer. Even after that police officer had told him all that Spielfogel must have told to Yellin and Kovner he still evinced no interest in helping the police. It was only later that he consented to talk.

One other matter should be mentioned. It is urged upon us that the trial court erred in leaving it to the jury as to whether Spielfogel was an accomplice. It is urged by counsel that the pistols used were pistols supplied by Spielfogel for the commission of this very crime and that we cannot say that a jury could have found that Spielfogel told the truth when he said that the pistols used were Malinski's pistols and not his.

That is not correct. Spielfogel testified that the pistols he had and put in the store where Malinski worked, on the morning of the day of the crime, were pistols that were to be used in connection with another crime to have been committed on Saturday morning or afternoon and that in that other crime there was to have been another participant in addition to himself and Malinski. This court has laid down the sound rule on that question. We can do no better than to quote it. Again we take but a few sentences from People v. Swersky (216 N.Y. 471, 478, CARDOZO, J.) which seem determinative of this question. "To permit a jury to say that he [Levinson] did join in it, when the only evidence is that he did not, would be to permit them [the jury] to build their verdict upon speculation and suspicion. Levinson, by his own confession, had committed many other crimes. But he did not commit this crime, either in person or by procurement." It may be that it could be argued that a finding by the jury that Spielfogel placed the pistols in the store for use in the robbery at Coney Island, would not be based only upon speculation and suspicion. However, the jury chose to believe Spielfogel's version of the incident. Whether or not we think a contrary finding would be speculative and based on suspicion, the contrary was not found and we cannot say that the jury was obligated to find it as a matter of law. Moreover, to find the contrary would be to disregard to a greater or lesser extent the testimony of Eisler.

When all is said and done these defendants had a fair trial and both confessed their guilt to persons other than the police or the District Attorney.

The judgments of conviction should be affirmed.