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New York Law Journal

Tankleff Conviction Upset, Panel Orders a New Trial

Mark Fass

12-24-2007

Seventeen years after a jury convicted Long Island teenager Martin Tankleff of beating and stabbing his parents to death on the eve of the first day of his senior year of high school, a state appellate panel has thrown out the convictions and his 50-years-to-life sentence.

A unanimous Appellate Division, Second Department, panel Friday vacated the two second-degree murder convictions, holding that Suffolk County Court Judge Stephen L. Braslow (See Profile) "erroneously applied . . . a narrow approach and methodology" in denying Mr. Tankleff's 2003 motion to vacate.

"It appears that the County Court never considered that the cumulative effect of the new evidence created a probability that, had such evidence been received at the trial, the verdict would have been more favorable to the defendant," Justice Reinaldo E. Rivera (See Profile) wrote for the four-judge panel in People v. Tankleff, D17541.

The decision will be published Monday, December 31.

The panel, however, ordered a new trial, declining to decide whether New York recognizes a "free-standing claim of actual innocence" under CPL 440.10(1)(h).

Mr. Tankleff's lead attorney, Bruce Barket, said he expects to secure his client's release from Comstock's Great Meadow Correctional Facility in about a week, though the holidays and the upstate location of the prison may pose delays.

"We'll be in front of the County Court as quickly as possible asking for bail," Mr. Barket said. "I already have the bail package put together."

Mr. Barket added that he hopes that Suffolk County District Attorney, Thomas J. Spota, will decline to retry the case.

In a statement released Friday afternoon, Mr. Spota said the appellate decision granting a new trial "found the lower court did not properly consider the evidence. We respectfully disagree with the court's decision. In the interim, we will return the defendant to Suffolk County Court for consideration of bail."

When asked if the Suffolk County prosecutor intends to retry the case, spokesman Richard Clifford answered, "The decision is being reviewed by the appellate bureau."

Arlene and Seymour Tankleff were murdered in the early morning hours of Sept. 7, 1988. Their adopted son Marty, then 17, claimed that he woke up and discovered his mother dead and his father unconscious but alive. He called 911 and administered first-aid to his father.

However, during the course of an interrogation that his attorneys call "hostile" and the Second Department described as "extensive," Martin Tankleff, believing the detective's ruse that his father was still alive and had implicated him, wondered out loud if he may have "blacked out" or been "possessed," then confessed to the crime.

Martin Tankleff quickly recanted, but that confession would serve as the key evidence keeping him imprisoned for nearly two decades.

A jury convicted him on June 28, 1990, of the intentional murder of his father and the depraved-indifference murder of his mother. Suffolk County Court Judge Alfred Tisch sentenced him to back-to-back 25-years-to-life sentences. Mr. Tankleff, now 36, has since pursued every avenue of possible appeal.

A sharply divided Second Department panel denied his direct appeal, rejecting his Miranda and other claims, by a vote of 3-2 in 1993 (199 AD2d 550). The two dissenting justices wrote that they would have suppressed his confession and, at a minimum, ordered a new trial. The Court of Appeals affirmed the conviction (84 NY2d 992).

In 1997, U.S. District Court Judge Thomas C. Platt denied Mr. Tankleff's petition for a writ of habeas corpus, though he issued a certificate of appealability. The U.S. Court of Appeals for the Second Circuit upheld Judge Platt's decision, ruling that although the police had in fact violated Miranda, the error was "harmless."

New Evidence

Finally, Mr. Tankleff initiated the present proceeding, a motion to vacate pursuant to CPL 440, based on new evidence and "actual innocence," in 2003. Judge Braslow denied the motion on several grounds, including Mr. Tankleff's failure to exercise "due diligence" in timely moving for a new trial, as well as his reliance on hearsay and dubious witnesses.

Mr. Tankleff's appeal of Judge Braslow's decision reached the Second Department on Oct. 4 of this year. Over the years, the case had become a leading cause célèbre, with well known figures, such as actor James Gandolfini and defense attorney Barry Scheck in the front row audience at oral arguments (NYLJ, Oct. 5).

The defense set forth numerous alleged errors of law and fact. The heart of their case centered on the independent testimony of more than half a dozen witnesses who implicated either Seymour Tankleff's former business partner Jerard Steuerman, who owed Seymour hundreds of thousands of dollars and had been at the Tankleffs' house on the night of the murders until 3 a.m., or Joseph "Joey Guns" Creedon, an acquaintance of Mr. Steuerman's son who allegedly repeatedly admitted to the crime.

The prosecution argued that the lower court had gotten it right - Mr. Tankleff had failed to exercise due diligence and his evidence was "inadmissible hearsay and incredible as a matter of law."

'Cumulative Effect'

In a 21-page decision highly critical of Judge Braslow's ruling, the Second Department held Friday in favor of Mr. Tankleff, throwing out the convictions and ordering a new trial.

"A review of the record on appeal reveals that the County Court's determination amounted to a misapplication of its gatekeeper function relative to the evaluation and admissibility of the proffered 'new evidence,'" Justice Rivera wrote.

Namely, the Second Department found that the "cumulative effect" of the new evidence merited a retrial.

"[T]he County Court failed in this regard," Justice Rivera wrote. "The County Court, in effect, applied a blanket disqualification of all of the defendant's proferred evidence."

The panel cited a "crucial" and "pivotal" fact that Judge Braslow "completely disregarded": "[M]any of the witnesses who testified at the CPL 440 hearing were unrelated to each other, and their genesis as witnesses was separated by both time and space. For instance, there is absolutely no connection between Kovacs, Fota, Demps, Fischer, Joseph, and Ram, [who each] implicated Creedon and/or Steuerman."

The panel, which also included Justices Gabriel M. Krausman (See Profile), Anita R. Florio (See Profile) and Mark C. Dillon (See Profile), vacated the conviction and ordered a new trial "to be conducted with all convenient speed."

Mr. Tankleff, who would not have been eligible for parole until 2040, will stay with relatives if he is released on bail, Mr. Barket said.

- Mark Fass can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it. .