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PEOPLE STATE NEW YORK v. BRUNNO BOONE (TRUE NAME BURNNO BOONE) AND JOHN BRANDON (07/02/68)

COURT OF APPEALS OF NEW YORK 1968.NY.42495 <http://www.versuslaw.com>; 239 N.E.2d 885; 22 N.Y.2d 476 July 2, 1968 THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.BRUNNO BOONE (TRUE NAME BURNNO BOONE) AND JOHN BRANDON, APPELLANTS People v. Boone, 29 A.D.2d 631, reversed. People v. Brandon, 29 A.D.2d 631, affirmed. Counsel Patricia A. Garfinkel and Anthony F. Marra for Brunno Boone, appellant. Allen S. Stim for John Brandon, appellant. Counsel Frank S. Hogan, District Attorney (Michael R. Stack and H. Richard Uviller of counsel), for respondent. Opinion by Judge Scileppi. All concur except Chief Judge Fuld who dissents in part and votes to reverse as to both defendants in an opinion in which Judge Burke concurs, and Judges Bergan and Jasen who dissent in part and vote to affirm as to both defendants. Author: Scileppi


People v. Boone, Opinion by Judge Scileppi. All concur except Chief Judge Fuld who dissents in part and votes to reverse as to both defendants in an opinion in which Judge Burke concurs, and Judges Bergan and Jasen who dissent in part and vote to affirm as to both defendants.

Author: Scileppi

 The defendants, Boone and Brandon, appeal from judgments of the Appellate Division, First Department, which affirmed judgments of the Supreme Court, New York County, convicting each of the defendants of murder in the first degree and sentencing them to life imprisonment.

The defendants were found guilty of murdering Thomas Brooks whose bound and gagged body was discovered in his apartment by his son Daniel on February 20, 1965. According to medical testimony, Mr. Brooks had died two days earlier; death was caused by fractures of the mandible (jaw bone), hyoid bone (a bone in the vicinity of the larynx) and asphyxiation by smothering from a gag in the mouth.

The deceased was last seen alive in his apartment on the afternoon of the murder, February 18, 1965, by an exterminator who testified that he saw him first about 1:30 p.m. and again about 20 minutes later.

A portable television set which was taken from the apartment was pawned on February 18, 1965 by Louis Cook. Cook, who led the police to both Boone and Brandon, testified that Boone and a girl named Adele approached him on a street corner and asked him to pawn a television set. For a small profit, he agreed to pawn the set and picked it up in a vestibule around the corner. Brandon was in the hallway when he picked up the set. Cook further testified that later in the day, after he had pawned the set, Boone admitted that he and Brandon had stolen it. Several days later, after an argument, Cook gave the pawn ticket to Boone.

Adele McClinton testified that on February 18, 1965, while seated in the Rock Tavern waiting for Louis Cook to purchase narcotics for her, she saw two men alighting from a cab, one of them Brandon, carrying a television set. They entered the tavern and Boone approached her and asked if she would pawn the television set for them offering her $10 to do so. Since she did not have proper identification, she suggested that perhaps her friend Louis Cook could help. She further testified that after Cook pawned the set she overheard Cook and Boone arguing about money and eventually she saw Boone hand Cook a sum of money.

Ernest Clark, another prosecution witness, testified that he was familiar with Boone from having seen him around the neighborhood. On February 23, 1965 Boone approached Clark and asked him if he was interested in purchasing a pawn ticket or television set. After visiting the pawn shop and inspecting the set, Clark bought the ticket and had the pawnbroker transfer the set to his name. The day after he redeemed the set, Clark was visited by the police, who instructed him to bring the set to the precinct.

In addition to the foregoing evidence, the People introduced a formal confession made by Brandon. This confession, which was technically inadmissible against and highly prejudicial to Boone (see People v. Adams, 21 N.Y.2d 397) asserted, inter alia, that Boone struck Brooks, that Boone went to pawn the television set and later also pawned a suit stolen from Brooks' apartment, and that Brandon and Boone used the pawn money to buy heroin.

Since each defendant raises different arguments on this appeal, we treat with their cases separately.

With Respect to Brandon

On May 20, 1966 a pretrial hearing as to the voluntariness of Brandon's alleged statements was commenced. On June 1, 1966 the hearing concluded with a finding that the statements were voluntarily given. Not until June 22, 1966, however, was any evidence received on the trial concerning the statements and not until June 23, 1966 were the statements offered in evidence.

Brandon contends that, although his trial commenced before the decision in Miranda v. Arizona (384 U.S. 436), his statements should have been ruled inadmissible since he was not given the four-fold " Miranda " warning at the time he was interrogated. We cannot agree with this conclusion.

In Johnson v. New Jersey (384 U.S. 719) decided on June 20, 1966, three days before the statements in this case were admitted in evidence, the Supreme Court held "that Escobedo and Miranda should apply only to cases commenced after those decisions were announced" (Johnson v. New Jersey, supra, p. 733). And in People v. McQueen (18 N.Y.2d 337) this court refused to apply a greater measure of retroactivity to Miranda than had been applied by the Supreme Court in Johnson, although Johnson made it clear that State courts were free to do so.

Brandon, however, attempts to distinguish Johnson and McQueen from the instant case by pointing out that in those cases the defendants' trials had been completed prior to the Miranda decision and the defendants were either in the process of direct appeal or had gained access to the appellate court by means of a post-conviction remedy. He contends that in this case the trial was still in progress at the time Miranda was handed down and, since Miranda was then the law of the land, it was error to receive his statement in evidence. We do not find this distinction to be vital, for it is also true that at the time the confessions were introduced Johnson v. New Jersey (supra) was the law of the land. As noted earlier, the Supreme Court made it quite clear that Miranda should not be applied where the trial had commenced before June 13, 1966 (Johnson v. New Jersey, supra, pp. 732-734). Moreover, in People v. McQueen ...


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