Tragic

by Robert K. Tanenbaum

  Karp walked over to the prosecution table and picked up the plastic envelope containing the magazine photograph from the Dock. “Mr. DiMarzo, you testified that you didn’t know Vince Carlotta, correct?”

  “That’s right.”

  “Did you know what he looked like before the night you went to New Rochelle with Alexei Bebnev and William ‘Gnat’ Miller to murder him?”

  “I’d never seen him before.”

  “Were you given some way to identify him so that you’d know you were killing the right man?”

  “Yeah. Bebnev gave me a photograph from a magazine.”

  “Where’d he get the photograph?”

  “From one of those guys, Joey, I think, that night he went to Hell’s Kitchen and met those guys.”

  “Could you describe the photograph?”

  “Yeah, there was four guys in it,” DiMarzo said. “They were standing on a boardwalk.”

  Karp handed the photograph and envelope to DiMarzo. “Can you identify the contents of this envelope?”

  DiMarzo looked at it and immediately nodded his head. “Yes, this is the photograph from the magazine that Bebnev gave me.”

  “How do you know that?”

  “I recognize the picture, and it’s got the same writing on it. My initials and the date I handed it over to you are also on the back.”

  “What did you do with the photograph after Mr. Carlotta was murdered?”

  “I put it in my Bible.”

  “Why? Why not get rid of it?”

  “I don’t know, really,” DiMarzo replied, and then thought about it for a moment longer before adding, “Maybe for this reason.”

  “Which is?”

  “To help prove that what I’m saying is the truth.”

  “Do you recognize anyone in the photograph now?”

  “Yeah, Mr. Carlotta,” he said before nodding at Vitteli, “and that guy over there, Vitteli.”

  Walking over to the defense table and staring down at the defendant, Karp pointed. “This man right here?”

  “Yeah.”

  Breaking off his eye contact with Vitteli, Karp turned toward the court reporter and judge’s dais. “Let the record reflect that the witness identified the defendant as one of the men pictured in People’s Exhibit Twenty-Eight, which I now ask the court to receive into evidence.”

  “Without objection so accepted,” Judge See ordered.

  Looking back at the witness, Karp asked, “Why did Bebnev give you the photograph? If he was going to do the shooting, why didn’t he use it to identify the victim himself?”

  “One thing was, Bebnev’s eyesight wasn’t so good,” DiMarzo replied. “He needed glasses, but he thought they made him look weak. But it was probably so that I would be more involved in the whole thing, too.”

  “Did you use the photograph?”

  “Yes, the night we went to his house in New Rochelle,” DiMarzo said. “They weren’t home when we drove by, so we waited up the block. After they drove past us and Mr. Carlotta got out of the car, I knew it was him from the photograph. He was a good-looking guy, pretty distinctive. As a matter of fact, Bebnev asked me if he was the guy. He kept saying, ‘Check the photograph.’ ”

  “Did you use the photograph again?”

  “No. We didn’t need it. Lvov called Bebnev and told him—”

  “Objection,” Kowalski said, rising to his feet. “Whatever, if anything, this Lvov character said to Bebnev would be hearsay.”

  “Sustained,” Judge See said.

  Karp rephrased. “Did Bebnev tell you about a new plan to murder Vince Carlotta?”

  “Yeah. He said that Carlotta was going to the restaurant where Bebnev had met Lvov and the two other guys, Joey and Jackie, and that Carlotta would be coming out of the restaurant with three other guys,” DiMarzo said. “We were supposed to wait in the alley and then pretend it was a robbery, only Bebnev was going to shoot Carlotta.”

  “But you didn’t need the photograph, because you’d already met Mr. Carlotta when he came to the door of his home in New Rochelle?”

  “That’s right.”

  Retrieving the photograph and returning it to the prosecution table, Karp moved on to the night of Carlotta’s murder by asking DiMarzo to recall what happened after he and Miller picked Bebnev up in Little Odessa and drove to Hell’s Kitchen. DiMarzo described how they’d waited for an hour in the alley, with Bebnev nervously smoking Belomorkanal cigarettes while DiMarzo kept his eye on Miller sitting in the car across the street watching for their victim to appear. They’d slipped farther into the shadows when sometime after midnight two men, one of them very large, walked past. A few minutes later, they got the signal from Miller, who waved and pointed, that their quarry was approaching.

  “We waited until their voices were close; then we jumped out,” DiMarzo said. “Bebnev pointed his gun at Mr. Carlotta and demanded their wallets. He was supposed to pull the trigger right away, but he hesitated, and that’s when Mr. Carlotta went for his gun.”

  “What were you supposed to be doing at this time?”

  DiMarzo shrugged. “I guess looking out for cops. But I think mostly Bebnev didn’t have the nerve to do it on his own.”

  “Did the defendant do anything at that time?” Karp asked.

  “Yeah, he had his hands up in the air,” DiMarzo said, demonstrating, “then reached down and grabbed Mr. Carlotta’s arm.”

  “Did Mr. Carlotta say anything then to the defendant?”

  “He said something but I didn’t hear what it was,” DiMarzo replied. “I had the ski mask pulled down over my ears that kind of muffled the sound, and to be honest, I think I was just sort of freaking out myself. I couldn’t believe it was all happening.”

  “Did the defendant say anything to Bebnev?”

  “He yelled, ‘Shoot!’ Something like that. He told Bebnev to shoot.”

  “What happened then?”

  DiMarzo sighed. “Bebnev shot him in the chest. It knocked Mr. Carlotta down. He was trying to get up, but Bebnev shot him in the head.”

  “Did the defendant say anything then?”

  “Yeah, Bebnev and I were just kind of standing there, so Vitteli,” DiMarzo said, again nodding toward the defense table, “told us to take their wallets and watches so it would look like a robbery. Then we took off across the street and peeled out of there.”

  Karp walked back to the prosecution table and glanced briefly at his notepad before turning back to the witness. “When did you get paid?”

  “I got some of it from Bebnev the next day,” DiMarzo said. “Seven thousand bucks for the two of us. But I had to bug him for the rest. That’s when he told me to meet him at a bar in Little Odessa and he’d give me the rest. Lvov showed up—”

  “How did you know it was Marat Lvov?” Karp interrupted.

  “Bebnev called him by his name when he walked into the bar,” DiMarzo said. “Lvov came over to our table. He wasn’t too happy to see me and told me to get lost. I was like ‘no problem’ and went across the street to wait for my money.”

  “Did you get your money?”

  “Not all of it. Lvov or one of his goons hit Bebnev in the bar, so he said he was keeping some of our share because he had to do the tough stuff,” DiMarzo said. “At that point, I just wanted nothing more to do with Bebnev, so I took it and left.”

  Crossing his arms, Karp walked slowly over to stand in front of DiMarzo. “How did you feel after the murder and you got your money?”

  DiMarzo’s mouth twisted as he considered his answer. “You know, at first it felt good to have a roll of dough in my pockets,” he said. “I don’t know. I kept telling myself that these guys—Mr. Carlotta and Vitteli and Joey and Jackie—were caught up in mob stuff and who cared if they wanted to kill each other. Then I read a couple of newspaper articles and people were saying all these good things about Mr. Carlotta, about how he cared for his union guys and was a . . . what was the word they used . . . a reformer. Then I watched the funeral servic
es for him on television and I saw his wife and his baby and . . .”

  For the first time since he’d taken the stand, DiMarzo’s voice faltered. “I saw her face and how much she loved him and what pain she was in. I started thinking about Mom and how she’d feel if Dad got killed. . . .”

  In the gallery, someone in DiMarzo’s family cried out, but the judge ignored them as DiMarzo continued. “And I felt like shit. I hardly slept, and when I did all I did was dream about her face, and I kept hearing Mr. Carlotta’s voice saying, ‘You son of a bitch.’ Only he wasn’t saying it to Vitteli, he was saying it to me, and I knew he was right, I was a son of a bitch.”

  “So why didn’t you turn yourself in?” Karp asked.

  DiMarzo considered the question and shook his head. “I was scared. I didn’t want to go to prison for murder. But mostly I didn’t want my family to know I’d done this terrible thing. I just kept hoping it would all go away.”

  “But after you were arrested and indicted, you pleaded not guilty and decided to go to trial with Alexei Bebnev,” Karp noted. “If you felt so bad about all of this, why not plead guilty then and take responsibility for what you’d done?”

  “The same reasons—I was scared and didn’t want my family to know—and also after I got arrested, my family got a photograph in the mail,” DiMarzo said. He scowled and looked at Vitteli. “It was a picture of my mom getting in our car and somebody drew a black mark across it. Some piece-of-shit coward was threatening my mom.”

  “Were you convicted of acting in concert to murder Vince Carlotta?”

  “Yes.”

  “Were you indeed guilty of acting in concert to murder Vince Carlotta?”

  “Yes.”

  “Was that conviction later vacated by my office?”

  “Yes.”

  “Would you please explain to the jury why?” Karp asked.

  “Evidently you found out there were some shenanigans with my court-assigned lawyers,” DiMarzo replied.

  Karp left it at that without explaining that during the Q&A statement he’d taken from him, Jackie Corcione had mentioned that Vitteli had paid the freight on Clooney’s legal fees but also for DiMarzo’s court-appointed private counsel. Vitteli basically called the shots on the defense and paid off DiMarzo’s counsel to let Conrad Clooney, ostensibly Bebnev’s lawyer, run the whole show. In effect, DiMarzo was denied effective assistance of counsel, compromising his Sixth Amendent rights.

  Prior to Vitteli’s trial, Karp had disclosed all of this on the record, in camera, with Kowalski present, indicating that DiMarzo would give the jury a very abbreviated, precise answer with respect to the vacating of his first conviction. Pointedly, he was directed to leave out any of Vitteli’s misconduct. Both parties agreed and the court so ordered.

  A less ethical prosecutor might have let the whole issue pass; after all, the defendants were guilty, as Miller and, later, DiMarzo had admitted. But not Karp. He’d immediately filed to vacate the verdicts and then explained to DiMarzo what it meant. “You are entitled to another trial with a competent attorney to truly represent you,” he said.

  But DiMarzo shook his head. “Don’t bother, I’m going to plead guilty,” he said. “I’ve lived with this long enough.” Karp insisted that he confer with his newly assigned counsel before proceeding to a final disposition of his case.

  Thereafter, Karp agreed to let DiMarzo plead guilty to manslaughter in the first degree, carrying a maximum of twenty-five years with a mandatory minimum of eight years, four months. The deal was in part due to DiMarzo’s willingness to accept responsibility and testify. But Karp also believed that justice required it; there was a difference between Miller as a wheelman, DiMarzo as the lookout, and the shooter Bebnev. The only other person in the whole tragedy whose debt equaled that of the triggerman—besides Barros, who’d already paid his bill—was the man who caused it all to happen, Charlie Vitteli.

  “So you could have gone to trial again with a different attorney?” Karp asked.

  “Yes, I could have had another trial,” DiMarzo answered.

  “Then why not take your chances that another jury might not convict you?”

  DiMarzo looked out into the gallery at his family as he answered. “Because I was guilty, and I needed to come clean.”

  “But aren’t you still afraid of prison?”

  “I was, but I’m not anymore.”

  “Why not?”

  “Because I walk with Jesus now, and I’m not afraid,” DiMarzo replied. “I’ve asked God for forgiveness, and I know that if something happens to me in prison, I’ll go to heaven and wait for my family.”

  “But how about your family? Weren’t you worried about disappointing them and how your admitting the truth might affect your mother’s health?”

  “Of course,” DiMarzo said. “But it was harder on her—knowing I was guilty, even if she didn’t want to admit it, and terrified that I couldn’t go to heaven to be with her someday if I didn’t confess and ask for forgiveness.”

  “But what about the photograph with the black mark across your mom; aren’t you afraid for her and the rest of your family?”

  “No,” DiMarzo said. “I think they’re going to be okay. But either way, they’re not afraid; they’re all stronger than I ever was because of their faith.”

  Karp nodded. Marlene had told him about Ivgeny’s promise to shield the DiMarzos from any repercussions, particularly from the Malchek gang. Sometimes it truly is good to have relatives in low places, he thought. “But it’s one thing to confess to your own crime,” he said. “Why agree to testify against Charlie Vitteli?”

  DiMarzo looked to the side for a moment to gather his thoughts. “Well, just like I believe it wouldn’t be enough to ask God for forgiveness—that I also had to confess to you and pay the price, if I was going to deserve to be forgiven—I knew I needed to do whatever I could to make this . . .” He stopped talking for a moment then: “Well, ‘right’ isn’t the word, I can’t make this right, but I can try to do the right thing. Mrs. Carlotta and her baby deserve justice.”

  Slowly, DiMarzo turned in his seat until he faced Vitteli, whose lip curled like a junkyard dog’s as he was confronted. “But it’s not just that. Me and Gnat and even Bebnev, we’re guilty as sin, but we got used, and the guy that used us is the same guy who wrecked Mrs. Carlotta’s life, and he needs to pay the price, too.”

  “And for the record, Mr. DiMarzo, who was this ‘guy’ you just referred to?” Karp asked.

  “Sitting right over there, Vitteli,” DiMarzo said, pointing at him.

  As the witness and defendant continued to glare at each other in the hushed courtroom, Karp turned to the judge. “No more questions, Your Honor.”

  Judge See looked over at Kowalski. “Will you be cross-examining the witness, Mr. Kowalski?”

  The defense attorney rose to his feet. “By all means, Your Honor,” he said. “But I’d like to wait until after lunch. I know it’s a little early, but I’d rather not get started before we break and then have to come back.”

  Judge See looked at the clock on the wall. He and Karp both knew that following such emotionally powerful testimony, Kowalski wanted its impact on the jury to dissipate before he attacked the witness. But it was not an unreasonable request.

  “Very well,” the judge said. “We’ll break now and resume at twelve thirty sharp.” When the jury had left, he said, “The witness may step down.”

  As DiMarzo rose from his seat, the witness’s sister Liza Zito yelled, “We’re proud of you, Frankie. Jesus loves you.” Her brother smiled and replied, “I love you, too.”

  Karp looked at the judge to see if he’d reprimand the sister or the witness. Judge See seemed about to say something but then turned without a word and left the courtroom.

  Looking back, Karp watched as DiMarzo hesitated briefly at the gate leading from the well of the courtroom. The young man’s eyes were on Antonia Carlotta, whose face was hard and impassive. “I’m sorry,” DiMarzo said.<
br />
  Antonia’s expression softened. “Me, too,” she said quietly and began to cry.

  After lunch, Kowalski’s cross-examination of Frank DiMarzo followed his pattern of questioning the witness’s motives, and what he derisively called DiMarzo’s “jailhouse conversion.” However, he concentrated the bulk of his attack on what in his opening statement he called “the lack of anything beyond the word of admitted murderers and liars, and manufactured evidence” tying Charlie Vitteli to the murder of Vince Carlotta.

  In particular, he questioned DiMarzo regarding the statement Bebnev overheard and “supposedly” told him about “Charlie wanting this done,” then moved on to his recollection of the murder. “Did you hear what Vince Carlotta allegedly said to my client?”

  “No. I know he said something.”

  “But it could have been anything?”

  “I didn’t hear what he said.”

  “But you did hear my client say, ‘Shoot him’?”

  “Yes, because he yelled it.”

  “If that’s what he said, are you sure whether he was talking to Carlotta or Bebnev?”

  “He was looking at Bebnev.”

  “Wasn’t everybody looking at Bebnev—Carlotta, my client, Joey Barros—I mean, after all, he’s the one holding the gun?”

  “Yes, except when Carlotta looked at Vitteli.”

  “So you don’t know who my client was actually speaking to?”

  “You’re not listening,” DiMarzo shot back. “Vitteli was ordering Bebnev to shoot Carlotta. He was holding Mr. Carlotta’s arm down.”

  “Could my client have been trying to get Mr. Carlotta to shoot, or desperately trying to get the gun so he could shoot?”

  “That’s not what it looked like to me.”