decided: May 15, 1968.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
ROBERT BURD, DEFENDANT, AND JOHN W. HOCKING, APPELLANT
People v. Hocking,
Concur: Chief Judge Fuld and Judges Burke, Scileppi, Bergan, Keating and Breitel. Judge Jasen dissents and votes to affirm.
Upon further reargument: Judgment, as amended, reversed and a new trial ordered in a memorandum: Upon this reargument we adhere to our earlier determination that defendant's confession was proven to be voluntary beyond a reasonable doubt (18 N.Y.2d 832). Nevertheless, since his co-defendant's involuntary confession, which implicated him, was admitted at their joint trial, defendant Hocking should, as a matter of fair procedure, receive a new trial with defendant Burd's confession excluded (People v. Cender, 18 N.Y.2d 610; People v. Morgan, 17 N.Y.2d 696; People v. Donovan, 13 N.Y.2d 148; People v. Rodriguez, 11 N.Y.2d 279; People v. Noble, 9 N.Y.2d 571; People v. Waterman, 9 N.Y.2d 561; People v. Bonino, 1 N.Y.2d 752; People v. Rudish, 294 N. Y. 500).
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