Felony Murder

by Joseph T. Klempner

  Many thanks to Larry Denson for his toxicological expertise; to Mike Wittman for long hours of printing assistance; to Seth Rothman for getting the manuscript read; to my agent, Bob Diforio, and my editor, Ruth Cavin, for their loyalty and support; to my three children, Wendy, Ron, and Tracy, for their early encouragement; to the various judges, lawyers, and other court personnel who have permitted me to borrow their lives and populate these pages with them; and to my wife, Sandy, for rekindling my fire to write after many years.

  A person is guilty of murder . . . when . . . he commits or attempts to commit robbery, burglary, kidnapping, arson, rape in the first degree, sodomy in the first degree, sexual abuse in the first degree, aggravated sexual abuse, escape in the first degree, or escape in the second degree, and, in the course of and in furtherance of such crime or of immediate flight therefrom, he . . . causes the death of a person.

  New York Penal Law Section 125.25(3)

  Joey Spadafino is cold. Cold and wet. He huddles in the doorway and shifts his weight from one foot to the other, trying to wriggle his toes inside his shoes to keep them from becoming numb. His breath sends the snowflakes scattering from in front of his face as they pick up the lights of Bleecker Street.

  It’s not the coldest night he has spent on the street, but it’s already the worst. Unlike rain, which Joey has found comes pretty much straight down and allows you to get out of by taking refuge in a doorway, snow blows sideways. In fact, it now seems to Joey that the snow sometimes blows up, like it’s coming from underneath the street. And it’s not a dry snow that you can shake off you. It’s these big, wet flakes that seem to be made out of melting ice, that make your clothing wet as soon as they land on you and soak the soles of your shoes.

  Joey has no watch, but he knows it’s well after midnight. He slept for an hour or so earlier, but he’s afraid to fall asleep again. He’s heard stories of people on the street freezing to death in their sleep ‘cause they got cold and wet and stopped moving, and got found dead the next morning. So he keeps moving his feet, keeps wriggling his toes, concentrates on making it through the night.

  Joey thinks about lighting another cigarette. He scored $2 from a lady walking a dog early in the evening, when the snow was just starting. She’d asked him didn’t he have a place to go to get out of the snow, and he’d said no, he was afraid of the shelters, which was true, and she’d reached into her purse and taken out $2, which she’d handed to him. He’d thought about snatching the purse and taking off with it, but he hadn’t done it, hadn’t had the nerve. He had thanked her instead. It was a big dog she was walking, anyway.

  He’d taken the $2 and bought a pack of cigarettes. He’d figured the cigarettes would get him through the night better than a slice of pizza would have. They’d last longer, they’d occupy him more. But by now he’s smoked half the pack, and his mouth tastes like a goddamn ashtray, and his stomach’s empty, and he wishes he had the slice of pizza.

  The meeting had broken up at 0230. If you could call it a meeting. The Police Commissioner, his two deputies, Pacelli and Childress, and Chief Inspector Haber, who headed up Internal Affairs. They had sat in the corner table at Chandler’s, gradually substituting good whiskey for mediocre food, and talking about the old days. It had been Pacelli’s idea that they meet, the First Dep saying they needed to talk about restructuring the patrol force in the wake of another round of anticipated budget cuts. But talk had soon turned to the days when a cop could be a cop instead of a public relations expert, and how respect for the uniform was a thing of the past, and how overconcern for minorities was destroying morale. The last was a somewhat delicate topic, since the PC himself was black, and the meeting had broken up shortly thereafter, to a glass-draining toast to the days when dinosaurs patrolled the streets.

  The brass had split up outside, shaking hands and slapping backs under the streetlamps in the gusting snow. Santana, the PC’s chauffeur, had the motor running in the Department auto, and it was warm inside, too warm.

  “Turn the heat down, willya?” the PC said, sitting down next to his driver. He refused to ride in the back.

  “Yessir,” said Santana, reaching forward and fumbling with a dial on the dashboard. But if he did anything about it, it didn’t seem to help. The PC reached to loosen his tie, but it was already undone. He felt like he might vomit. Had he drunk that much? Was he getting the flu, like so many of his men? He tried to crack his window open, but the automatic control seemed to respond to his commands too quickly. Unable to stop it at opening just a bit, he settled for leaving it half open, with snowflakes blowing into the car and over him.

  “Home, sir?”

  “Yes, home,” the PC said.

  Santana drove carefully through Midtown, down to the Village, toward the Bleecker Street townhouse. He slowed for the red lights before taking them, skidding slightly each time he accelerated again. The snow seemed trapped in the beam of the headlights. They were about to take the turn onto Bleecker when the PC said, “Pull over. I’ll get out here and walk the block. I can use the air.”

  “You sure, sir?”

  “Yes, I’m sure.”

  Santana pulled to the curb. The PC thanked him for the ride and stepped out into the snow, slamming the door behind him. Santana waited and watched the PC turn up his collar and begin the walk across Bleecker Street. Then he pulled away from the curb and continued down Seventh Avenue.

  At the moment he first notices the man whose death will so profoundly affect his own life, Joey Spadafino is playing a game with himself attempting to keep warm. He’s trying to think of the hottest place he’s ever been. Not just like Rockaway Beach in August, when the sand gets so hot in the afternoon it can burn the soles of your feet, but places like that elevator in the Polo Grounds Projects Joey had got stuck in between floors for an hour and a half, or the place behind the big boiler in PS. 6 where he and Chico used to get high.

  When he sees the man walking toward the doorway where he’s huddled, Joey’s first thought is that the guy’s drunk. A black man, taller than Joey and heavier. But old, must be sixty. Well- dressed, an expensive-looking overcoat. And totally wasted. Walking with his head down, weaving back and forth. Every several steps he seems to sort of misjudge the height of the pavement, so his foot strikes it before he thinks it’s going to, and each time he’s got to correct himself and find his rhythm all over again.

  Joey looks up and down the block. Empty. The falling snow acts like an early-warning system. The flakes would light up from the headlights of a car pulling into the block, even before the headlights themselves come into view. Nothing.

  In seconds, the man’s going to pass by him. If he wants to, Joey can take this guy off easy. He holds his breath, feels his pulse pound in his chest. He raises himself up slightly on the balls of his feet, becomes taller, more menacing. The guy’s fifteen feet away, ten feet, five. . . .

  Janet Killian had just put her baby daughter down in her crib following what was supposed to have been her two o’clock feeding, although it was actually more like two-thirty. While she sometimes envied those mothers whose babies slept through the night from the moment they came home from the hospital, the truth was she kind of liked nursing Nicole in the quiet darkness of the early morning. It was perhaps their closest time together. Janet Killian was a single mother, a working single mother, and quiet time with her daughter was a precious commodity, even if it was a commodity that came at the price of sleeping through the night.

  She pulled the blanket over the baby’s shoulders, felt the warmth of the tiny back, already rising and falling in the regular breathing of sleep. She walked to the window to see if it was still snowing.

  Drawing the curtain back, Janet watched the flakes blowing by, catching the streetlight. T
he sidewalk had turned white, although the snow had a slushy look to it, rather than the powdery appearance of her Midwestern memories. Then, across the street, something commanded her attention. A man, kneeling, bent over something in the snow. She squinted to see better, cupped her hands around her face to shield off any light from within the apartment. The something, she realized, was another person, another man, lying on his side on the pavement. And the first man was now going through the fallen man’s pockets.

  “Hey,” Janet said, but in keeping her voice quiet so as not to wake her baby, it came out as little more than a whisper against the window glass. She reached for the phone, heard a dial tone, hesitated, then forced herself to dial 911. She continued to watch the man going through the other man’s pockets, now taking something, now holding it up to the light.

  “Emergency Operator Twenty-three,” a woman’s voice was saying. “May I help you?”

  “Yes,” said Janet. “I’m watching a crime” was all she could think of.

  “What sort of crime, ma’am?”

  “A robbery, I guess, a mugging.”

  “Where is this occurring, ma’am?”

  “Right across the street,” said Janet. “Across from Seventy-seven Bleecker Street.”

  “What are the cross streets, ma’am?”

  “What?” Janet did not understand. The first man had stood up now. It looked like he was standing on the fallen man, or straddling him.

  “Seventy-seven Bleecker Street, ma’am,” the woman’s voice was saying. “What streets is that between?”

  “Oh,” said Janet. “Sixth and Seventh.”

  “Sixth and Seventh,” the woman repeated. “Ma’am, I’m going to ask you to hold on a moment. What’s your phone number, in case we get disconnected?”

  But Janet was now staring into the face of the standing man, who was looking directly up at her. She lowered the phone to her side, hearing “Ma’am? Ma’am? Ma’am?” continuing to come from it. She could see that he was a white man, and young. She could see him look away from her window, to what must be another window. Now he stepped back from the fallen man, looked down at him, and backed away farther.

  “Ma’am? Ma’am?” The voice was still coming from the phone at her side. The young man started walking toward the corner, slowly at first, then faster. . . .

  “Hey, get away from him!” Joey’s suddenly aware of a man’s voice somewhere above him, aware of lights coming from windows in the building behind him. And across the street a woman in a window is staring at him.

  “Shit,” Joey says. He looks at the wad of bills held together in a money clip, thinks of dropping the money, pockets it instead. Fighting the impulse to run, he starts walking toward Seventh Avenue, muttering “Shit, shit, shit, shit” over and over.

  When he seems to be getting no closer to the corner, he breaks into a jog, concentrating on not losing his footing on the snow. At the corner, he turns uptown, dropping back into a fast walk. But there are cars, and the oncoming headlights light up the front of his body. He turns around, begins walking downtown, hears the first siren off in the distance. Tries to concentrate on what he’s got here, tries to think. Fingers the wad of bills in his pocket, feels the money clip, slips it off and palms it in his pocket.

  The siren’s getting louder. Joey cocks his head, trying to locate it. Thinks at first it’s coming from his right, then from downtown, from in front of him. He considers turning around again, but is afraid to.

  At the corner, he walks close by a wire trash can and drops the money clip in. An alley appears on his right, and he turns into it. But a noise from the blackness startles him, and he’s back on Seventh with the siren getting louder. He breaks into a jog again, a run. . . .

  A glance in his calendar book reminded Dean Abernathy that today was the day he was supposed to call the Assigned Counsel Office to see if they had any assigned cases they wanted him to handle. They had called him Friday after he’d already left for the day and left a message on his answering machine. The cases didn’t pay much, since the hourly rates he had to bill for at the end of each case were so low, but private criminal cases were hard to come by in these times. Besides, it was better to be busy than to sit around.

  Still, it was only nine o’clock Monday morning, and there might not be anyone in the Assigned Counsel Office yet. So Dean assembled the files he would need in court that morning and reviewed each one before putting them in his briefcase. Run-of-the-mill stuff. A “buy and bust” drug sale to an undercover cop, where they had caught the defendant five minutes later with “stash” (more drugs packaged identically to those sold) and “cash” (the prerecorded money the undercover cop had used to buy the drugs). A DWI for whom Dean would try to get a reduced plea, from Intoxicated to Impaired, so he could at least get a provisional license to drive to and from his job. A guy who had thrown a plate at his girlfriend because she rejected the dinner he cooked for her and instead fed it to their dog. Dean snapped the briefcase shut and put on his scarf and coat. It had snowed last night, and the walk to court would be a cold one.

  On a chance, he dialed the number of the Assigned Counsel Office. It rang three times. He would give it four.

  “Assigned Counsel,” said a woman’s voice.

  “Hi, this is Dean Abernathy. Someone called me late Friday about taking a couple of cases, and I’m returning the call.”

  “What panel are you on?”

  “Felony,” Dean answered.

  “Let me see,” she said. Then, “No, nothing at the moment. They must have found somebody to take those.”

  “No problem,” Dean said.

  “You’re not on the Homicide Panel, are you?”

  “Yes, I am.”

  The Homicide Panel was made up of the most experienced criminal defense lawyers who took court-appointed cases. It paid no more than the other panels, but membership on it carried a bit of prestige, a rare commodity indeed in the Criminal Court Building.

  “Well, Judge Mogel just called from AR-1. He’s going to need someone this morning on the Wilson murder. Are you interested?”

  “Wilson murder?” Dean was embarrassed to say he didn’t know who Wilson was or what the Wilson murder was.

  “Don’t you listen to the news?”

  “I guess not.” The truth was, Dean confined his radio listening to the weather and the traffic. Television was for sports and movies. In court, he’d read the Times folded behind the lid of his open briefcase in order to catch up on the news.

  “Police Commissioner Wilson was murdered. Died during a mugging.”

  “Wow,” said Dean, slowly and stupidly.

  “Do you want it?”

  Reflexively, “Yeah, sure.”

  “Okay,” she said. “I don’t have a docket number yet, but the defendant’s name is Joseph Spadafino, S-P-A-D-A-F-I-N-O. He’s twenty-eight, and he’s being arraigned this morning in AR-1.”

  “Very good,” said Dean, having no idea yet if it was very good or not, still digesting the fact that the Police Commissioner had been killed. “Thanks.” He hung up the phone, took a blank manila file folder from a box, and wrote the name Joseph spadafino on it. He added it to the files in his briefcase and headed for court.

  One Hundred Centre Street, the Criminal Court Building. If our prisons are terrible places because we want them to be, thought Dean Abernathy as he entered the revolving door, then our courthouses are designed to be almost as bad, a sort of preview of coming attractions. Poorly lit, filthy, noisy, overcrowded, smoke-infested, too cold in the winter, too hot in the summer. It was as if they were kept that way intentionally, to prepare the defendants and their families alike for what the next step, prison, would be like, to soften the shock of what lay in store.

  He flashed his attorney ID at the court officer, who permitted Dean to bypass the line at the metal detector. He wound his way through defendants, police officers, jurors, court personnel, and others to the rear of the first-floor lobby, to the felony arraignment part known
as AR-1. He pushed his way through the double doors and saw that Judge Mogel was already on the bench, waiting for cases to be called.

  Murray Mogel’s chronic poor health made him look older than his sixty-six years. To most, he was a cynical, sarcastic man who had little patience for prosecutors or defense lawyers. To Dean, who had known Mogel since the days they had both been Legal Aid lawyers, Mogel was indeed cynical and sarcastic. But his cynicism was even-handed: he disbelieved police officers with the same disdain that he disbelieved defendants, with the result, as most defense attorneys knew, that he was a good judge to waive a jury in front of and take one’s chances with. Not that that mattered today, when Mogel, as the arraignment judge, would simply be setting bail and an adjourned date on defendants making their first appearance in court since their arrests. And in Dean’s case, in the case of the People of the State of New York v. Joseph Spadafino, there would be no bail, since there seldom was in murder cases.

  “Come up, Mr. Abernathy.” Judge Mogel had spotted Dean and, characteristically, did not wait for Dean to ask to approach the bench. Dean unhooked the chain that separated the audience portion of the courtroom from the well, where the participants stood, and walked up to the bench.

  “Good morning, Judge.”

  “Hello, Dean.” Judge Mogel extended his hand, and Dean shook it. It was thin and cold from the circulatory problems that came with a bad heart. “I hear you’ve been assigned to the Wilson case.”

  Dean nodded, not missing the nuance that the case, in which the deceased was a well-known public figure and the defendant an unknown citizen, had taken on the name of the victim.

  “Well, the papers aren’t ready yet, but your client’s inside.” Judge Mogel waved vaguely in the direction of the door to the holding pen, which contained prisoners waiting for their arraignments. “Talk to him and let me know if you have any objection to the TV cameras. They’ve made a request for a pool camera.” This time, Judge Mogel waved toward the far side of the courtroom.