Chief Judge Fuld and Judges Burke and Keating concur with Judge Breitel; Judge Scileppi dissents and votes to affirm in a separate opinion in which Judges Bergan and Jasen concur.
Defendant appeals from a conviction for robbery in the second degree and related crimes and a sentence to State prison for 15 to 20 years. Following a posttrial hearing on the voluntariness of his confessions, obtained in a proceeding brought by defendant in the nature of a writ of error coram nobis, the trial court held that the statements were voluntary. The Appellate Division affirmed the conviction, and also the denial of coram nobis relief on the basis of People v. Bodie (16 N.Y.2d 275), holding that while most of the statements were made in the absence of counsel defendant had waived his right to counsel.
On the present appeal defendant contends that there was error in the admission of some 11 inculpatory statements and that there was further error in the admission upon the trial of testimony by a police officer that the complaining witness had previously identified defendant.
The judgment of conviction and the order in the coram nobis proceeding should be reversed and a new trial granted. The 11 inculpatory statements, made by defendant over the course of three weeks (to a Cheyenne, Wyoming, police officer, an agent of the Federal Bureau of Investigation, several Westchester County Parkway police officers, and an assistant district attorney), were obtained in violation of his constitutional rights and should not have been admitted into evidence. Because of the conceded error in permitting testimony by a police officer concerning a pretrial identification of defendant made by the complainant, a reversal is also required.
Serious questions are raised as to the admissibility of his first three statements, given to the Cheyenne police officer and the F. B. I. agent. Even assuming, however, that their admission was not error, defendant's last eight statements, given to the New York officials after the filing of an information and the issuance of an arrest warrant, were inadmissible under People v. Bodie (16 N.Y.2d 275, supra). This error, as well as the erroneous admission of testimony as to the pretrial identification, requires reversal of defendant's conviction.
Some seven months after the commission of an armed robbery against a Mr. and Mrs. Bruce in Westchester County, defendant appeared at police headquarters in Cheyenne, Wyoming, requesting a pass, as an indigent, for a free night's lodging with the Salvation Army. When he made a similar request the next night (Sept. 21, 1961), the police radio dispatcher became suspicious. In response to an inquiry, defendant admitted that he "could be wanted for questioning", and he was thereupon arrested by the "jailer" for vagrancy. A Captain Smith was called, and defendant admitted that he might be wanted for questioning in New York on a robbery charge.*fn*
Captain Smith then called in one Harry V. Jones, the resident F. B. I. agent. At about 10 o'clock that night, according to Captain Smith, defendant orally confessed to having committed the robbery, although he refused to sign a statement. (Agent Jones, on the contrary, testified that defendant made no confessions that night, but that defendant stated that if he had commited the crime, he [defendant] would not admit it.) The next day, the Cheyenne authorities advised the Westchester authorities that defendant had been apprehended, and confirmed that defendant had, indeed, been questioned about the Bruce robbery. That afternoon he was convicted of vagrancy and sentenced to a $50 fine or 50 days, the sentence to be suspended upon completion of investigation on the New York robbery charge.
The interrogation of defendant by Captain Smith and Agent Jones was continued the day after his conviction. Both officers testified that during this questioning, defendant confessed to the robbery.
Defendant testified that prior to the first interrogation session with Agent Jones and Captain Smith, he had requested a lawyer but was told he would have to wait until he got to court. He further testified that he was not given a lawyer during the vagrancy proceedings, and, because of the earlier refusals, did not bother asking for one the second night of interrogation. Captain Smith testified at the posttrial confession hearing that he had offered to supply defendant with a lawyer but defendant had refused to have one. In contrast to his posttrial testimony, at the trial Captain Smith had testified that he had told defendant he could have a lawyer if he paid for one. Agent Jones testified both on the trial and the posttrial hearing that he (not Smith) had advised defendant of his rights and that defendant had made no requests for a lawyer.
Defendant's claim that he requested a lawyer but was refused is consistent with his later futile attempts to secure his rights. Thus, on September 25, defendant drew up a petition for a writ of habeas corpus, alleging that he was being held on a sham vagrancy charge, that he was being deprived of his rights, and demanding an extradition hearing. He also complained of a stomach illness. Defendant requested that the jailer forward his papers to the Federal District Court in Wyoming. However, the papers remained in the custody of the police, who were unable to explain why they never reached the Federal court.
About a week after "mailing" the petition, defendant sent a letter to Acting Governor Gage of Wyoming, this time using a fellow inmate, who was being released, to mail it. In this letter he again requested an extradition hearing. He claimed that he had signed an extradition waiver without the benefit of counsel and while under the influence of compazine, a tranquilizer drug which had been prescribed for him at Laramie County Hospital by a Dr. Klein, who had diagnosed his continuing stomach ailment as an ulcer. He also asserted that he had been told that the extradition-waiver papers were a release of liability for his medical treatment. A reply by the Acting Governor to his letter was received at the jail addressed to defendant. The letter disavowed any circumstances warranting assistance to defendant. It was, however, never received by him personally but remained in the hands of the police authorities.
It is at this time, some two weeks after defendant's arrest for vagrancy, that the Westchester police came into the picture. Following the communication received from Cheyenne, the Westchester police had continued their investigation. On September 29, Detective Fulgenzi filed an information against defendant and obtained a warrant for his arrest. The detective and Assistant District Attorney Spring arrived in Cheyenne on October 5 and began questioning defendant shortly before noon on October 6. Detective Fulgenzi, who saw defendant alone, testified that at first defendant was very un-co-operative and complained about his stomach ailment and the food he was receiving. He agreed to talk, however, when Detective Fulgenzi promised to get him a roast beef dinner. Defendant then made a full confession to the robbery and told Detective Fulgenzi and Mr. Spring where he had hidden the gun and uniform.
When defendant asked for a lawyer before the interrogation, Detective Fulgenzi answered, "Well, I don't know any attorneys here, but here is a telephone book. You can look one up." Defendant responded, "That's a laugh." This incident was substantially confirmed by Detective Fulgenzi and Mr. Spring at the trial and by Mr. Spring at the posttrial confession hearing. Defendant also testified to the incident and explained that he said it was a "laugh" because he had only five cents and could not hire a lawyer. Detective Fulgenzi testified at the posttrial hearing, ...