
    The People of the State of New York, Respondent, v. Jean Di Fede, Appellant.
   Christ, Acting P. J., Brennan, Hopkins and Munder, JJ., concur; Benjamin, J., dissents and votes to reverse the judgment and grant a new trial, with the following memorandum: In my opinion, the circumstantial proof against defendant is insufficient to establish beyond a reasonable doubt that she was a principal in the murder of her husband. Prestigiacomo, the main prosecution witness, testified that earlier on .the evening of the murder Cossentino received a note from Mrs. Di Fede and, after reading it, said “ that whore didn’t want him to kill her husband ”, but “ he couldn’t wait any longer.” He further testified that when he refused to help Cossentino kill Dr. Di Fede, Cossentino became like a wild beast and threatened him with a hammer. He conceded that he (Prestigiacomo) had told the Grand Jury that Mrs. Di Fede was hysterical when he came into the house where the murder was then being committed; that she had said to him that “we are all ruined”; that she had pleaded with him to help her; and that she was going towards the telephone when Cossentino hit her and caused her to faint. In my view, this testimony indicates that Mrs. Di Fede did not want her husband to be killed and that she wanted the planned killing stopped, but was too frightened of Cossentino to try to stop him. And when considered along with the proof of her relationship with Cossentino and the proof of her attempts to protect him after the crime had been committed, the - pattern that emerges is that of a hopelessly enamored woman wanting to shield her lover after the killing because she loved him, even though she had not wanted the killing done and would have stopped it if she could. This conclusion, however, falls far short of establishing Mrs. Di Fede’s guilt as a principal. What it does establish, and all that it does establish, is that she was an accessory. If she was only an accessory, her conviction as a principal was improper. Nor is this conclusion negated by the testimony of Mrs. Di Fede’s brother that she telephoned him soon after the killing and said to him, “We killed Joe and they went out the window”, since: (1) the alleged statement is self-contradictory; (2) in his previous statements to the police, the brother was uncertain about the word “we”; (3) when he heard this alleged statement on the telephone, the brother was drowsy (having just been awakened at 4:30 a.m.) and Mrs. Di Fede was hysterical; and (4) even if Mrs. Di Fede did use the word “we” in her then state of hysteria, it might well have been in the emotional context that she considered Cossentino linked to herself and that what he did was in effect her deed because of her relations with him. On this whole record, Mrs. Di Fede’s guilt as a principal was not established beyond a reasonable doubt; the judgment should be reversed; and a new trial should be granted.  