21 N.Y.2d 249 | NY | 1967
Concurrence Opinion
I concur in the result reached by the majority, because I believe that the charge on voluntariness was improper; I cannot agree with the court’s conclusion that the statements made with regard to the theft of the property in Suffolk County should be excluded merely because counsel had been assigned to represent him on the charge of receiving stolen property in New York City.
The crimes of receiving stolen property and larceny—and burglary—are “ separate, distinct offenses ” (People v. Kupperschmidt, 237 N. Y. 463, 465; see, also, People v. Cefaro, 21
The majority, in effect, holds that, once counsel is appointed to represent an accused for a particular crime or if a criminal is sufficiently well off to have permanent retained counsel, the police may not question him with regard to any crime. This holding is unwarranted as it is unprecedented. I cannot agree.
Judges Van Voorhis, Burke, Bergan and Breitel concur with Chief Judge Fuld; Judge Keating concurs in a separate opinion in which Judge Scileppi concurs.
Judgment reversed, etc.
Lead Opinion
The defendant was arraigned in the New York City Criminal Court upon a charge of criminally receiving stolen property. Counsel was assigned to represent him, and the trial was adjourned to a future date. The defendant, released upon his own recognizance, was immediately arrested, as he was about to leave the courtroom, by New York State Police who were present during the arraignment proceedings. They turned him over to other members of the State Police force in Suffolk County. Shortly thereafter, these officers questioned him in the absence of, and without notice to, his attorney concerning a burglary of a private home in that county and the theft therefrom of property which was also involved in the New York County receiving charge. Such interrogation, despite the defendant’s “ waiver.” of his right to counsel, was impermissible. Consequently, the confession obtained from him should not have been received in evidence. (See, e.g., People v. Donovan, 13 N Y 2d 148, 151-153; People v. Waterman, 9 N.Y 2d 561, 565-566; People v. Di Biasi, 7 N Y 2d 544, 549-551; Escobedo v. Illinois, 378 U. S. 478, 484-488, 490-492; Massiah v. United States, 377 U. S. 201, 204-206.)
Reversible error was also committed when the trial judge refused the defendant’s request to submit to the jurors the question of the voluntariness of the confession after he had, in effect, instructed. them that they need only consider and decide whether the confession was true or false. (See, e.g., People v. Rensing, 20 N Y 2d 936; People v. Huntley, 15 N Y 2d 72, 77-78; People v. Barbato, 254 N. Y. 170, 172-174; Rogers v. Richmond, 365 U. S. 534, 545-546.)
The conviction must be reversed and a new trial ordered.
