People v. Ohlstein

Per Curiam.

Irving Ohlstein and Lloyd Kurzman were indicted for the murder of Robert Newmark. Ohlstein, after a jury trial, was convicted of the crime of murder; Kurzman was acquitted.

The key testimony presented by the prosecution was through the mouths of witnesses declared by the trial court to have been accomplices as a matter of law. The prime issue on this appeal is whether the prosecution presented corroborative evidence of that accomplice testimony which tended to connect the defendant with the commission of the crime (CPL 60.22, subd 1).

The victim, Robert Newmark, was found dead in the bedroom of his apartment on August 11, 1972. The bullets recovered from the body of Newmark and from his apartment were identified as .25-caliber bullets all fired from the same .25-caliber weapon. The murder weapon was not recovered.

In 1973, while the police were conducting a separate investigation involving pornography and organized crime, one of their contacts, Robert Surretsky, supplied them with information about the Newmark murder. The testimony at trial revealed that Surretsky had been approached by Ohlstein in September, 1970 to find someone to kill Newmark. Surretsky suggested Edward Mack, a resident of Massachusetts. There were discussions held among Ohlstein, Surretsky and Mack as to the murder and disposal of the corpse. After these 1970 meetings, Surretsky did not meet with Ohlstein until October, 1972. Mack met with Ohlstein in March, 1971, at which time Mack said he was no longer working with Surretsky. In July, 1972, Ohlstein introduced Mack to Thomas Richburg, an employee of Ohlstein’s, and stated that Richburg would assist in the murder.

A few weeks before the murder, Mack, while at a bar, met Lloyd Kurzman, a social acquaintance from Massachusetts. Kurzman needed money and he, too, agreed to participate in the murder.

A few days before Newmark’s murder, Richburg, Ohlstein and one Carl Richardson went to buy lumber. Richardson, a high-school student, was also an employee of Ohlstein’s, working for him only during the summertime. The three of them drove in a truck owned by Dura Tite Screw Company (owned by the defendant Ohlstein) to a lumber company, purchased lumber, and took it to the basement of the Dura Tite warehouse where they began constructing a box, which was approximately three feet by five feet and had a top to it. When the box was almost finished, Richardson was told to get into the box. The box was small, but nonetheless Richardson was able to fit his entire body into it. Richardson was told by Richburg that the box was being built for a man.

On the same day that the box was built, Mack and Kurzman were together with Richburg and Ohlstein in the basement of Dura Tite. Mack asked Ohlstein what Richburg was doing, and Ohlstein reassured Mack that Richburg was "all right,” and then Richburg, in the presence of Ohlstein, stated, "I’m building a coffin.”'

A few days after the coffin was built, Ohlstein directed Richburg to dismantle it, which direction was executed by both Richburg and Richardson. Several days before the actual murder of Newmark, Ohlstein, Kurzman, Mack and Richburg arranged to have Newmark killed at the basement of Dura Tite. The four of them met in the basement. There Richburg got a .25-caliber automatic from Ohlstein. Ohlstein left, stating he did not want to be around when Newmark was killed. The plan called for Ohlstein and Newmark to have dinner in Chinatown and then to return to the basement of Dura Tite where Newmark would be killed. The meeting did not materialize. When Ohlstein returned to Dura Tite about two or three hours later, Richburg returned the .25-caliber weapon to Ohlstein and everyone left.

Testimony at the trial revealed that sometime before Christmas of 1968, one Hector Vasquez had sold Ohlstein a pistol. However, Vasquez was unable to verify that the pistol sold was in fact a .25-caliber pistol.

In September, 1972, shortly after the Newmark murder, Kurzman visited Surretsky at his apartment and Surretsky asked Kurzman if he had killed Newmark. Kurzman allegedly admitted to the murder, stating that he had gone to New-mark’s apartment and shot Newmark in the head. He also stated that he was paid by Ohlstein. In addition, Kurzman allegedly admitted to Mack in December, 1972 that he had killed Newmark because he needed the money.

In February, 1974, Kurzman was arrested in Lenox, Massachusetts, for the murder of Newmark. On the same day, Mack was arrested for conspiring to murder Newmark.

Mack initially refused to co-operate with the authorities in the investigation of the murder. On April 15, 1974, he was released on bail of $50,000 supplied by Ohlstein, who paid $3,000 in cash and posted as security bankbooks reflecting deposits of $35,000. Ohlstein also paid $1,000 in fees to the attorney representing Mack at his arraignment. Kurzman was not released on bail.

Sometime after Mack was released on bail, he met with Ohlstein. At this meeting, Mack allegedly offered to lie, take the stand, go away, or do anything else Ohlstein wanted in exchange for $15,000. Mack’s testimony at the trial was that Ohlstein gave him $300 and said he would have the money for Mack in a couple of days.

Further testimony at the trial indicated that Ohlstein owed Newmark between $170,000 and $250,000.

While the above synopsis does not detail all of the involved testimony given at the trial (in a record of over 6,000 pages), it does relate facts relevant to a discussion of the corroborative evidence and its sufficiency to sustain the conviction of murder.

Accomplice testimony is insufficient by itself to sustain a criminal conviction. It must be corroborated by "evidence tending to connect the defendant with the commission of such offense” (CPL 60.22, subd 1). Testimony of each of several accomplices is not corroborative of the other (People v O’Farrell, 175 NY 323; People v Chamberlain, 38 AD2d 306, 311); nor would testimony tending merely to establish the credibility of an accomplice be sufficient (People v Fiore, 12 NY2d 188; People v Goldstein, 285 NY 376).

Our Court of Appeals has held (People v Kress, 284 NY 452, 460): "The corroborative evidence to have any value must be evidence from an independent source of some material fact tending to show that defendant was implicated in the crime * * * The independent evidence must be material evidence other than that of the accomplice and must fairly and reasonably tend to connect the defendant with the commission of the crime * * * It may not depend for its weight and probative value upon the testimony of the accomplice. It need not, alone and by itself, establish that defendant committed the crime. But where the corroborative evidence standing alone has no real tendency to connect defendant with the commission of the crime, it is insufficient”.

In the case at bar, the People rely on four items of independent evidence as corroborative of the story told through the mouths of Surretsky, Mack and Richburg, the three men found by the trial court to be accomplices as a matter of law; they are:

1. The construction of a "coffin”;

2. The purchase by Ohlstein of a .25-caliber weapon;

3. The posting of bail and paying of attorney’s fees by Ohlstein for Mack; and

4. The indebtedness of Ohlstein to Newmark.

We find that these items either alone or in the aggregate are insufficient to corroborate the accomplice testimony. The only nonaccomplice testimony regarding the construction of the "coffin” was from Carl Richardson, who received instructions from Richburg, an accomplice. Richardson could not in any way connect Ohlstein with directing the construction of the box. Nor was its size (three feet by five feet) normal for use as a "coffin.” Similarly, the independent proof of the purchase of a pistol by Ohlstein in 1968 is insufficient. The seller of the gun could not identify its caliber, and the date of its purchase was remote (1968) from the date of the crime (1972). The posting of bail for Mack is also insufficient corroborative evidence since Mack was not indicted for murder and there is no showing (other than Mack’s testimony) that Ohlstein posted bail for his own benefit.

The evidence of Ohlstein’s indebtedness to Newmark cannot be evidence tending to connect Ohlstein with the commission of the crime. This debt and the alleged plot to kill Newmark both existed since 1970; yet while supposedly fearful of a demand for payment, Ohlstein delayed for two years before allegedly having Newmark killed. In addition, there was no assurance that Ohlstein would not be called upon to pay his debt to the estate of Newmark. This independent evidence of motive must therefore be found insufficient as well (cf. People v Wyler, 37 AD2d 375, 377).

We find therefore that, since there was insufficient corroborative evidence presented within the meaning of CPL 60.22, the conviction must be reversed and the indictment dismissed. We must parenthetically note that the zeal of the Trial Justice in this case (e.g., in his interjection in questioning), while not rising to the level of reversible error, should in the future be curbed. A Trial Justice must be impartial and dispassionate and not appear as an advocate.

Accordingly, the judgment of the Supreme Court, New York County, rendered June 18, 1975, convicting the defendant of the crime of murder, should be reversed on the law and the indictment dismissed. The appeal from the order of the Supreme Court, New York County, dated April 2, 1976, denying the motion to vacate the judgment pursuant to CPL 440.10, is dismissed as academic.