73 A.D.2d 886 | N.Y. App. Div. | 1980
Lead Opinion
Judgment, Supreme Court, New York County, rendered November 21, 1978, convicting defendant of murder in the second degree and sentencing him thereupon to 15 years to life, affirmed. The underlying facts, which are not in dispute, are set forth in the dissent. Contrary to our dissenting colleague, however, we find from the totality of the evidence that defendant’s guilt of this calculated and brutal murder of a hapless victim was established beyond a reasonable doubt and that no error in the admission of evidence warrants a new trial. The People’s case stands on much more than Ms. Edwards’ positive, albeit belated, identification of defendant as the killer. At its foundation is the relationship which had existed between defendant and Ms. Edwards. For almost four years they had been lovers, living, traveling and working together. Just four months before the killing, Ms. Edwards began to socialize with Fred Fuller. It was a relationship which was to blossom into romance and eventually an engagement to marry. During these months defendant, tormented by Edwards’ growing attachment to Fuller, spoke often of suicide. He also threatened to take care of Fuller and to arrange for Edwards to know, as defendant knew, what it
Dissenting Opinion
dissents in a memorandum as follows: Glenn Fisher, the defendant, stands convicted of murder in the second degree. The homicide was both brutal and bizzare. Although the evidence presented a positive identification to the jury, its background was wavering and hesitant. So ambivalent is that background that, in the context of a fundamental error in the admission of evidence, I would hold that a retrial is necessitated. Fisher began to date Fernmarie Edwards, the prosecution’s principal witness, early in 1973. Fisher had already received his degree from Florida State University, in Tallahassee, Florida, where he had majored in communications and theatre. Ms. Edwards was attending the University. Fisher was specializing in the field of pantomine. Because engagements were somewhat infrequent, he supplemented his income by holding down all sorts of odd jobs. Despite his uncertain income Fisher rented a house in Tallahassee. After Ms. Edwards and Fisher had dated for a. brief period, Ms. Edwards disclosed that she was having great difficulty making ends meet. Fisher invited her to live at his house. Ms. Edwards accepted the invitation and, commencing in April, 1973, the two started living together. According to Ms. Edwards, the relationship between them became very close. This situation obtained until the latter half of 1976 when Fisher suggested that New York City might prove a more fertile field for his talents. Ms. Edwards acquiesced and in October, 1976, the couple arrived in Brooklyn, where they took up residence in the apartment of a friend. Shortly thereafter, Ms. Edwards was successful in obtaining a job in the Communications Department of the New York Stock Exchange. Fisher’s efforts were less successful and, although the record is less than clear on the subject, it is fair to assume that the pair subsisted largely on the earnings of Ms. Edwards with minor contributions from Fisher. In the course of her work Ms. Edwards met Fred Fuller, the deceased, who was also employed in the Communications Department of the Stock Exchange. During February, 1977, the acquaintanceship began to ripen into friendship. The two began lunching together and taking brief walks after the close of business. Fisher learned of these developments and began to make teasing remarks. On May 16, 1977, Ms. Edwards and Fisher left for Quincy, Florida, to attend the wedding of Ms. Edwards’ sister which, in fact, took place on May 20,1977. Prior thereto there had been several discussions between the two in which Ms. Edwards indicated that they might be reaching a parting of the ways. On the day they left for Quincy, Ms. Edwards told Fisher that she had definitely decided to leave him. During the discussion which started before they left and continued throughout the trip Fisher exhibited anger and, according to Ms. Edwards, made a threatening remark with respect to Fuller. Sometime during this period Ms. Edwards decided that the time had come to exercise a greater measure of independence. She took a small apartment into which she and Fisher moved. The two returned to New York on May 22, 1977. During the week that followed Fisher told Edwards that he was returning to