People v. Burd, 18 N.Y.2d 832

People v. Burd

18 N.Y.2d 832 | NY | 1966

Dissenting Opinion

Chief Judge Desmond

(dissenting). I dissent and vote to reverse and to order a new trial for the reasons given in my dissent in People v. McQueen (18 N Y 2d 337).

There is another inescapable reason for a reversal here. Not only was the confession of this 17-year-old youth taken after hours of questioning by police and prosecutors without the presence of any lawyer or friend or relative, but his father, who had come to' police headquarters to see him, speak to him and advise him, was turned away’and sent home. The father and son actually saw each other through a doorway at headquarters but the police told the father that the young man had not signed his confession yet and that the father could not see him until after a confession should be signed. This conversation took place some hours before the questioning of the son was concluded.

All of the above is undisputed. I do not see how this could be other than an unconstitutional denial of the defendant’s right to the assistance of counsel (see Escobedo v. Illinois, 378 U. S. 478; People v. Donovan, 13 N Y 2d 148; People v. Ressler, 17 N Y 2d 174; People v. Gunner, 15 N Y 2d 226). Furthermore, the youth and inexperience of this defendant plus the fact that he *834was interrogated for hours by no fewer than seven police officials and the District Attorney, plus other coercive circumstances, bring the case necessarily within such decisions as Haley v. Ohio (332 U. S. 596). Surely the totality of these facts impels a finding of involuntariness (Davis v. North Carolina, 384 U. S. 737).

Reversal as to this defendant probably necessitates a reargument of People v. Burd (7 N Y 2d 839, rearg. den. 13 N Y 2d 1185) since Burd was a eodefendant with Hocking and a similar argument by Burd was rejected by us. I vote for a reversal as to this appellant Hocking and a reargument as to Burd.

Judges Van Vookhis, Soileppi, Bergan and Keating concur in Memorandum; Chief Judge Desmond dissents in an opinion in which Judge Burke concurs only as to denial of appellant’s right to the assistance of counsel; Judge Fuld dissents solely on the dissenting opinion in People v. McQueen (18 N Y 2d 337), decided herewith.

Upon reargument: Judgment, as amended, affirmed in a Memorandum.

Lead Opinion

MemoRandum. The record fully substantiates the finding that the appellant’s confession was voluntary. We said, in our earlier decision in this case (People v. Hocking, 15 N Y 2d 973), that certain facts alluded to in the dissent herein (e.g., the age of the appellant; the appearance of appellant’s father at the station house) were to be considered on the limited issue of vol-untariness. In People v. Taylor (16 N Y 2d 1038) we reiterated that denial of access to the defendant’s family was germane, but in no wise controlling on the question of voluntariness. Nothing in the present case requires, as the dissent seems to suggest, that we abandon our position in Hocking and Taylor and accept, on this appeal from the Huntley hearing, arguments rejected in the main appeal. This case was tried long before June of 1966. The case of Miranda v. Arizona (384 U. S. 436) is not applicable (People v. McQueen, 18 N Y 2d 337, decided herewith).