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New York Law Journal

AG's Chief Trial Counsel Prepares to Tackle Tankleff Murder Case as Special Prosecutor

Joel Stashenko

01-18-2008


The attorney who has been leading the state's attempts to recoup pay from former New York Stock Exchange Chairman Richard A. Grasso will make his first court appearance today in a new role heading a special prosecution in another high-profile case, the 1988 killings of Arlene and Seymour Tankleff.

Benjamin E. Rosenberg, chief trial counsel for Attorney General Andrew M. Cuomo, will head a team of three attorneys in Mr. Cuomo's office who will investigate the Tankleff murders. Governor Eliot Spitzer designated the attorney general as a special prosecutor in the case last weekend.

Mr. Rosenberg will be before Suffolk County Supreme Court Justice Robert W. Doyle in Riverhead for a noon hearing today.

The Tankleff's son, Martin H. Tankleff, served 17 years for his parents' murders, but his conviction was overturned last month by an appeals court (NYLJ, Dec. 24, 2007). When Suffolk County District Attorney Thomas J. Spota announced on Jan. 2 he would not retry Mr. Tankleff, the defendant's supporters had hoped today's hearing might result in a dismissal of the charges.

See Tankleff Pro Bono Effort Born of Ex-Classmate's Law Paper.

But Mr. Cuomo said his office will need time to acquaint itself with the case. A source familiar with Mr. Cuomo's investigation said Mr. Rosenberg planned to make only a "brief appearance" today before Justice Doyle.

Mr. Tankleff's attorney, Bruce A. Barket of Garden City-based Barket & Angeli, said yesterday he had intended to file a motion to dismiss the charges against his client today but will now hold off for a "reasonable" length of time.

"We think the case ought to be dismissed," Mr. Barket said in an interview. "However, we understand the attorney general's office has just received the case and they are going to need some time to review it and to come to some conclusions, which they are entitled to do."

Mr. Barket has acted as local counsel for the Tankleff pro bono appellate team, which represents several large national law firms and is led by Barry J. Pollack, a partner with the Washington, D.C., office of Kelley Drye & Warren, assisted by Washington associate Dawn Murphy-Johnson.

"I don't think the attorney general's office is going to come to any other conclusion than Mr. Spota's," Mr. Pollack said in an interview earlier this week. "There's no viable case."

Mr. Barket said he will urge Mr. Rosenberg and others on the attorney general's special prosecution team to dispose of the charges against Mr. Tankleff first "and then take a much broader look at both the murder and the investigation."

Jeffrey Lerner, Mr. Cuomo's spokesman, declined yesterday to discuss how Mr. Rosenberg will proceed with his investigation and prosecution starting with today's hearing.

Mr. Rosenberg, on leave as a partner at Dechert, joined Mr. Cuomo's staff in March. He was an assistant U.S. attorney in the Southern District's criminal division from 1990-94.

He has led the legal case Mr. Cuomo inherited from Mr. Spitzer to capture some of the $187.5 million pay package Mr. Grasso received when he left the New York Stock Exchange. Mr. Rosenberg will remain in charge of the Grasso litigation, Mr. Lerner said yesterday.

Last year, a sharply divided Appellate Division, First Department, panel dismissed four of the six claims in the state's case against Mr. Grasso (NYLJ, May 29, 2007). The Court of Appeals has not yet scheduled oral arguments to hear the appeal of the First Department case.

Several other cases related to the Grasso investigation are still pending in the Appellate Division. There also has been speculation that the case might be settled.

Two assistant state attorneys general will work with Mr. Rosenberg on the Tankleff case, Risa Sugarman and Thomas Schellhammer. Ms. Sugarman is a former chief of the Bronx district attorney's homicide bureau and Mr. Schellhammer a former homicide prosecutor for the Manhattan district attorney.

Four investigators in the attorney general's office, all former homicide detectives in the New York Police Department, also have been designated to work on the Tankleff case, Mr. Lerner said yesterday.

Any appeals arising from the probe and prosecution will be handled personally by Mr. Cuomo's solicitor general, Barbara D. Underwood, according to Mr. Lerner.

When Mr. Spota announced he would not retry Mr. Tankleff, he said he would seek to dismiss the charges against him. The district attorney said it was "no longer possible to reasonably assert" that he could secure a guilty verdict against the now 36-year-old Mr. Tankleff.

Instead, Mr. Spota asked Mr. Spitzer to select a special prosecutor to try to unravel who was behind the killings, one of Long Island's most sensational murder cases. Evidence that emerged after Mr. Tankleff's conviction raised doubts whether he killed his parents or whether associates of Seymour Tankleff's business partner, who was said to owe the victim large sums of money, murdered the couple.

The Second Department did not find Mr. Tankleff innocent or order the charges against him dismissed, but ruled that it was "probable" that a jury would find him innocent at a new trial if it heard the new evidence. After serving 17 years of a 50-year-to-life sentence, Mr. Tankleff is free on $1 million bail.

The case is the first time as state attorney general that Mr. Cuomo has been designated by Mr. Spitzer as a special prosecutor. However, there is precedent for such a move. For example, Governor Mario M. Cuomo appointed Attorney General Robert Abrams as special prosecutor to handle the investigation arising out of allegations by black teenager Tawana Brawley that she had been kidnapped and raped by six white men, one wearing a badge.

- Joel Stashenko can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it. . Law Journal reporter Thomas Adcock contributed to this article.