SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
July 11, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
EDWARD CASSIDY, PAUL JOACHIM, PETER KRAUSS, JAMES MADOLE AND ANTHONY WELLS, APPELLANTS
Judgments of conviction of the defendants-appellants, rendered after trial, of riot, of violations of section 1897 of the Penal Law, and of conspiracy to commit the crimes of riot and violation of section 1897 of the Penal Law, unanimously reversed, on the law, and vacated in their entirety as to the several crimes of which the defendants-appellants were convicted, and new trial granted. The admission into evidence, at the joint trial, of oral and in some cases written extra-judicial statements of each of several defendants tending to incriminate co-defendants violated the rights of said co-defendants and requires a new trial.
Concur -- Stevens, J. P., Eager, Capozzoli, McGivern and McNally, JJ.
In the circumstances of this case, the instructions limiting the consideration by the jury of the incriminating statements could not reasonably operate to dispel the prejudice to co-defendants resulting from the receipt of such evidence which was hearsay as to them. (See Bruton v. United States, 391 U.S. 123; Roberts v. Russell, 392 U.S. 293; People v. Burrelle, 21 N.Y.2d 265.) Furthermore, a new trial as to defendant Joachim is required on the ground that, in the circumstances of this case, his right to the assistance of counsel on the trial was improperly denied. (See People v. Koch, 299 N. Y. 378; see, also, Glasser v. United States, 315 U.S. 60; People v. McLaughlin, 291 N. Y. 480.) Finally, insofar as the appeal brings up for review the order or decision denying defendants' motion to suppress certain evidence seized in a search of defendant Joachim's truck, we conclude that the same should be and is unanimously affirmed.
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