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Newsday
Tankleff Conviction Upheld, 3-2
By Elizabeth Wasserman
Staff Writer

December 29, 1993

An appellate court upheld Martin Tankleff's convictions for the 1988 murders of his parents Monday, but in an unusual twist, two dissenting justices said they would have suppressed his confession, dismissed the indictment, and at the least, sent the case back for a new trial.

In a 3-2 decision, a panel of Appellate Division justices in Brooklyn voted to affirm Tankleff's 1990 convictions for the bludgeoning and slashing deaths of Seymour and Arlene Tankleff in the couple's waterfront Belle Terre home Sept. 7, 1988.

Martin Tankleff, now 22, is serving 50 years to life at the Clinton Correctional Facility in Dannemora.

At the time of the slayings, Tankleff was a high school student who complained of having to drive "a crummy old Lincoln" to school. When Suffolk County police arrived at the murder scene, Tankleff admitted being at home when his parents were killed, but he accused his father's business associate of the murders. Tankleff was questioned at police headquarters starting at 9:40 a.m. that day but was not read his rights until 11:56 a.m., after which police said he made a full confession.

But appellate attorney Mark Pomerantz, of Rogers & Wells in Manhattan, argued that police Dets. James McCready and Norman Rein subjected Tankleff, then 17, to an interrogation in violation of his privilege against self-incrimination. Pomerantz contended that police unfairly tricked Tankleff by staging a phone call to the hospital where his father was taken, and telling him that his father had fingered him in the assault.

The defense arguments split the four-judge panel that heard the case in September, requiring that a fifth justice be appointed to review the trial record and cast the deciding vote.

"It's extraordinary," said Robert Gottlieb of Commack, Tankleff's trial attorney, who also worked on the appeal. "We are so close to having the conviction overturned. It means the battle is just beginning. With two strong dissents, we will be seeking leave [to appeal] to the Court of Appeals."

The Appellate Division's majority opinion found that Tankleff was not denied his rights because he was not in police custody, although he was at police headquarters, until he made certain comments - "Could I have blacked out and done it?" and "Could I be possessed?" - to police. The decision goes on to say that the "trickery" employed by police enhanced the factual reliability of Tankleff's confession.

"I'm satisfied with the decision," said the trial prosecutor, John Collins, deputy chief of homicide in the Suffolk district attorney's office. "The majority feels obviously that he was not in custody to any time prior to four minutes to noon. They also feel very strongly this defense of brainwashing has no basis in fact."

But in a two-page dissenting opinion, Justice Cornelius J. O'Brien, with Justice Geraldine T. Eiber concurring, wrote that, based upon the circumstances, and particularly Tankleff's age, he was subjected to "custodial interrogation" without the benefit of his rights being read, and therefore his confession should be suppressed. The dissenting justices go on to say that, in "the absence of any other evidence connecting the defendant to the murders, except for the confession which he disavowed at trial, the indictments should be dismissed."

In addition, the dissenting justices say, even if the confession were not suppressed, a new trial should be granted because the prosecutor was allowed to comment during summation on the defense's failure to call Tankleff's sister and brother-in-law as witnesses.

Tankleff's sister, Sheri Rother, who had supported him almost until the end of the trial, when he testified, said yesterday, "I don't believe the dissension came out of any belief that anybody thought that he might be innocent. It was more a legal decision than anything else."

Ron Falbee, who has been backing his cousin Tankleff, said yesterday, "We feel very strongly that Marty was unjustly convicted of these crimes. We believe there is no evidence and we're happy that two judges obviously saw that."

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