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PEOPLE STATE NEW YORK v. ALAN MCNEIL (04/23/69)

COURT OF APPEALS OF NEW YORK 1969.NY.41296 <http://www.versuslaw.com>; 249 N.E.2d 383; 24 N.Y.2d 550 decided: April 23, 1969. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.ALAN MCNEIL, CHARLES SPAIN AND HENRY EUGENE MCNEIL, APPELLANTS People v. McNeil, 29 A.D.2d 917, affirmed. Counsel Jonathan L. Rosner and Seth Rosner for Charles Spain, appellant. Richard T. Farrell for Henry Eugene McNeil, appellant. Counsel Anthony G. DiFalco for Alan McNeil, appellant. Counsel Eugene Gold, District Attorney (William I. Siegel of counsel), for respondent. Judges Bergan, Breitel and Jasen concur with Judge Scileppi; Chief Judge Fuld dissents and votes to reverse in a separate opinion in which Judges Burke and Keating concur. Author: Scileppi


People v. McNeil, Judges Bergan, Breitel and Jasen concur with Judge Scileppi; Chief Judge Fuld dissents and votes to reverse in a separate opinion in which Judges Burke and Keating concur.

Author: Scileppi

 Defendants and another were indicted and tried for the murder of Detective Donald Rolker of the New York City Police Department. The jury convicted these defendants of felony murder but were unable to reach a verdict as to the fourth co-defendant. The Appellate Division, Second Department, affirmed the judgments of conviction and defendants appeal pursuant to permission granted by a Judge of this court.

Shortly after they were apprehended, each of the defendants voluntarily made a detailed confession implicating himself as well as each of the other defendants in the crime charged. At the trial, these confessions were received in evidence with clear, forceful limiting instructions that each confession should be considered only against the declarant.

In Bruton v. United States (391 U.S. 123) and Roberts v. Russell (392 U.S. 293), cases involving joint trials in which only one of the defendants confessed, implicating the other, the Supreme Court held that despite limiting instructions it was error to receive the confession in evidence because of the substantial risk that the jury looked to the extra-judicial statement in determining the nonconfessor's guilt, thus violating his right of cross-examination secured by the confrontation clause of the Sixth Amendment.

The only substantial question raised on this appeal is whether the rationale of Bruton is applicable where each of the defendants has himself made a full and voluntary confession which is almost identical to the confessions of his co-defendants.

We agree with the several courts both in this State and in the Federal jurisdiction which have held that in a case such as this, the logic of Bruton is inapplicable (see United States ex rel. Catanzaro v. Mancusi, 404 F. 2d 296; see, also, People v. Dusablon and Samperi, N. Y. L. J., Feb. 21, 1969, p. 17, col. 4; People ex rel. Bartlam v. McMann, N. Y. L. J., Nov. 22, 1968, p. 16, col. 1). Thus in the Catanzaro case, where the confessions of two defendants, each implicating the other, were introduced in a joint trial, the court dismissed a Federal writ of habeas corpus holding (404 F. 2d 296, at p. 300):

"The reasoning of Hill [ United States ex rel. Hill v. Deegan, 268 F. Supp. 580] and Bruton is not persuasive here. Both of those cases involved a defendant who did not confess and who was tried along with a co-defendant who did. In our case Catanzaro himself confessed and his confession interlocks with and supports the confession of McChesney.

"Where the jury has heard not only a co-defendant's confession but the defendant's own confession no such 'devastating' risk attends the lack of confrontation as was thought to be involved in Bruton."

We have considered defendants' other contentions and find them to be without merit.

Accordingly, the judgments appealed from should be affirmed.

Disposition

Judgment affirmed.

Chief Judge Fuld (dissenting). The appellants before us made full confessions and, if each had been tried separately and found guilty, I would readily agree that the convictions should be affirmed. However, upon the joint trial which was held, each of them was inculpated not only by his own statements but also by those of his co-defendants and, under established principles, they should not have been received against him. It is easy enough to say, since each of them had fully admitted his guilt, that new trials are unnecessary but it seems to me -- if we are to be faithful to the rules laid down by the Supreme Court -- that we are required to reverse the judgments and direct new and separate trials. (See Roberts v. Russell, 392 U.S. 293; Bruton v. United States, 391 U.S. 123.)

Even before the decisions in Bruton and Roberts, our court held that, in a case in which a defendant was implicated by an out-of-court statement of a co-defendant tried jointly with him, his conviction could not stand. (See People v. La Belle, 18 N.Y.2d 405; People v. Burrelle, 21 N.Y.2d 265; People v. Adams, 21 N.Y.2d 397; see, also, People v. Baker, 23 N.Y.2d 307; People v. Boone, 22 N.Y.2d 476; People v. Jackson, 22 N.Y.2d 446.) "It is a fundamental principle of evidence, embodied in the confrontation clause of the Sixth Amendment," we declared in the Jackson case, "that statements made outside the courtroom, without the opportunity for cross-examination, are admissible only against the person who made them. [Cases cited.] Consequently, when two or more defendants are tried jointly, a confession given by one defendant which inculpates a co-defendant may not be received in evidence unless 'all parts of the extra-judicial statements implicating [the latter] can be and are effectively deleted'. (People v. La Belle, 18 N.Y.2d 405, 410, n. * * *.) Where such effective redaction is not possible, where a ...


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