Opinion
July 5, 1967
Defendant appeals from a judgment of the former County Court, Queens County, rendered August 6, 1962, convicting her of murder in the second degree, upon a jury verdict, and sentencing her to a prison term of 20 years to life. Judgment affirmed. The sole appellant before this court is Jean Di Fede, who was indicted and tried jointly with Armando Cossentino in connection with the brutal slaying of her husband, Dr. Joseph Di Fede. Death came in the victim's own bedroom between 2:00 A.M. and 4:00 A.M. on December 7, 1961. Cossentino was found guilty of murder in the first degree, sentenced to execution, and on his appeal directly to the Court of Appeals the decision was withheld pending further psychiatric examination and report ( People v. Cossentino, 14 N.Y.2d 750 [May 7, 1964]). He is now in Matteawan State Hospital for the criminally insane. Cossentino struck the blows to the head and wielded the knife into the victim's chest; he planned and premeditated the crime. Appellant's guilt as a principal in the murder of her own husband rests on circumstantial evidence. Mrs. Di Fede had a meretricious relationship with Cossentino prior to the killing; she also gave some financial aid to him. At the same time her relationship with her husband was deteriorating; one week before his death they quarreled severely and he reduced her household allowance from $200 per week to $50 per week. She telephoned the landlady of the building in which Dr. Di Fede conducted his profession at 11:30 P.M. on December 6, 1961 and inquired if the office was still busy; the landlady heard the doctor's office being locked at 1:30 A.M. on December 7, 1961. Mrs. Di Fede was present in her own home during the entire period of the killing which consumed a relatively substantial period of time. The chief prosecution witness, Atanasio Prestigiacomo, was with her in the kitchen and dining room and testified that Cossentino left the murder room twice in order to get knives to use on his victim; a ball peen hammer was probably the first weapon used in the three sallies by Cossentino alone into the bedroom. Prestigiacomo several times heard the victim cry out and moan, "Armando, you are killing me". On one such occasion Mrs. Di Fede commented to Prestigiacomo that her husband knew Armando very well. When the deadly assaults were concluded, she, at Cossentino's beckoning, gave him a cold drink; she then searched for some clothes to replace his blood-splattered things; she supplied him with a pillow case to take away the weapons and his bloodstained things; she inquired of Cossentino as to what she should tell the police; and she intervened and calmed the killer when he moved against Prestigiacomo for objectiing to his plan to remove the body. Not too long after the two men left, Mrs. Di Fede telephoned her brother between 4:15 A.M. and 4:30 A.M. He testified that her first words to him were: " I am in trouble"; " We killed Joe and they went out the window" (emphasis added). She refused to tell him who was involved. He told her to telephone the police, which she did. When they arrived and began the investigation, she told them that she had been awakened by footsteps, that she found her husband lying on his bedroom floor and that she knew nothing as to who the attacker was. This was in accordance with Cossention's answer to her question about what to say just before he left the house. She never abandoned this story. In January, 1962, about one month after the killing, Mrs. Di Fede asked her brother for permission to marry Cossentino "after the trial" because they planned to go to Switzerland together. No arrests were made until February 24, 1962, when Prestigiacomo finally broke and told his grim story to the police. We find that these circumstantial factors point definitely and sufficiently to Mrs. Di Fede's complicity and guilt in the murder of her husband (see People v. Weiss, 290 N.Y. 160; People v. Emieleta, 238 N.Y. 158). The verdict is not against the weight of the evidence. There were other items of evidence, including a key to the Di Fede house, which Cossentino had, and a note from Mrs. Di Fede to Cossentino with respect to which he made a damaging exclamation, which cannot be used or weighed against Mrs. Di Fede, since she was not connected to them except in conversations between Cossentino and Prestigiacomo, outside her presence. The jury was very carefully instructed in this regard by the learned Trial Justice. In this connection, the People urge upon us the argument that, in considering the weight of the evidence, this court may construe the facts more strongly against Mrs. Di Fede in view of her failure to take the stand. People v. Smith ( 114 App. Div. 513) is cited as the leading case for this proposition and it was quoted and cited by People v. Trombino ( 238 App. Div. 61, affd. 262 N.Y. 689). The Court of Appeals, more recently, specifically disapproved the holding of Smith and implicit therein is a disapproval of Trombino ( People v. Forte, 277 N.Y. 440). The rejection of that curious proposition is in conformity with today's burgeoning concept of the constitutional privilege against self-incrimination. The several other points which have been argued, including those of constitutional deprivations under the Fourth, Fifth, Sixth and Fourteenth Amendments of the United States Constitution, have all been carefully examined and we find that none of these singly or collectively justifies a reversal or modification of the judgment, or a retrial. Christ, Acting P.J., Brennan, Hopkins and Munder, JJ., concur; Benjamin, J., dissents and votes to reverse the judgment and grant a new trial, with the following memorandum: In my opinion, the circumstantial proof against defendant is insufficient to establish beyond a reasonable doubt that she was a principal in the murder of her husband. Prestigiacomo, the main prosecution witness, testified that earlier on the evening of the murder Cossentino received a note from Mrs. Di Fede and, after reading it, said "that whore didn't want him to kill her husband", but "he couldn't wait any longer." He further testified that when he refused to help Cossentino kill Dr. Di Fede, Cossentino became like a wild beast and threatened him with a hammer. He conceded that he (Prestigiacomo) had told the Grand Jury that Mrs. Di Fede was hysterical when he came into the house where the murder was then being committed; that she had said to him that "we are all ruined"; that she had pleaded with him to help her; and that she was going towards the telephone when Cossentino hit her and caused her to faint. In my view, this testimony indicates that Mrs. Di Fede did not want her husband to be killed and that she wanted the planned killing stopped, but was too frightened of Cossentino to try to stop him. And when considered along with the proof of her relationship with Cossentino and the proof of her attempts to protect him after the crime had been committed, the pattern that emerges is that of a hopelessly enamored woman wanting to shield her lover after the killing because she loved him, even though she had not wanted the killing done and would have stopped it if she could. This conclusion, however, falls far short of establishing Mrs. Di Fede's guilt as a principal. What it does establish, and all that it does establish, is that she was an accessory. If she was only an accessory, her conviction as a principal was improper. Nor is this conclusion negated by the testimony of Mrs. Di Fede's brother that she telephoned him soon after the killing and said to him, "We killed Joe and they went out the window", since: (1) the alleged statement is self-contradictory; (2) in his previous statements to the police, the brother was uncertain about the word "we"; (3) when he heard this alleged statement on the telephone, the brother was drowsy (having just been awakened at 4:30 A.M.) and Mrs. Di Fede was hysterical; and (4) even if Mrs. Di Fede did use the word "we" in her then state of hysteria, it might well have been in the emotional context that she considered Cossentino linked to herself and that what he did was in effect her deed because of her relations with him. On this whole record, Mrs. Di Fede's guilt as a principal was not established beyond a reasonable doubt; the judgment should be reversed; and a new trial should be granted.