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decided: April 23, 1969.


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.


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 defendant's admission of guilt is 'so interrelated in the involvement of an accomplice as to render it impossible for practical purposes to separate them' (People v. Pollock, 21 N.Y.2d 206, 214, supra), a joint trial must be eschewed and separate trials directed" (22 N.Y.2d, at p. 450).

The majority, not disputing the rule, merely asserts that when (as in this case) each appellant had himself confessed, his co-defendants' statements did not contribute to the verdict against him and the error committed was rendered non-prejudicial. Although such arguments have found favor with some courts (see, e.g., People ex rel. Bartlam v. McMann, N. Y. L. J., Nov. 22, 1968, p. 16, col. 1; United States ex rel. Catanzaro v. Mancusi, 404 F. 2d 296), we have consistently rejected them and, I suggest, with good reason. (See People v. Baker, 23 N.Y.2d 307, supra ; People v. Jackson, 22 N.Y.2d 446, supra.) The Constitution requires, the Supreme Court has made clear, that, when two or more defendants are tried jointly, a confession made by one of them, inculpating a co-defendant, may not be received in evidence. And, as that court declared in Roberts v. Russell (392 U.S. 293, 294, supra), where the rule is not observed and the defendant's "right of cross-examination secured by the Confrontation Clause of the Sixth Amendment" is violated, the error goes "'to the basis of fair hearing and trial because the procedural apparatus never assured the [appellant] a fair determination' of his guilt or innocence."

However, as I have noted, it is urged that that constitutional violation may be overlooked in this case and the error stamped as harmless. Our court has not hesitated to hold an error harmless when the record demonstrates that the claimed defect could not have prejudiced the defendant, influenced the jury or tainted its verdict (see, e.g., People v. Kingston, 8 N.Y.2d 384, 387) but we have not hitherto departed from the fundamental principle that even a guilty person is entitled to a fair trial. (See, e.g., People v. Donovan, 13 N.Y.2d 148, 153; People v. Rosenfeld, 11 N.Y.2d 290, 300; People v. Jackson, 7 N.Y.2d 142, 145.) In Donovan (13 N.Y.2d 148, supra), for example, the defendant had made two confessions, one oral and one written, and it appeared that one of them -- that which was in writing -- had been illegally obtained in violation of the defendant's right to counsel. Despite the fact that the oral confession, as well as other proof, made out a "strong" case against the defendant, the court, nevertheless, reversed the conviction with these words (13 N.Y.2d, at pp. 153-154):

"That * * * does not justify an affirmance * * * for, not knowing what credit and weight the jury gave to the written confession, we cannot say whether the jury would have returned a verdict of guilt if that improperly received statement had been excluded. 'It is for jurors,' we wrote in People v. Mleczko (298 N. Y. 153, 163), 'not judges of an appellate court such as ours, to decide the issue of guilt' solely on the basis of evidence properly before them. [Cases cited.] It cannot be overemphasized that our legal system is concerned as much with the integrity of the judicial process as with the issue of guilt or innocence. The constitutional and statutory safeguards provided for one accused of crime are to be applied in all cases. The worst criminal, the most culpable individual, is as much entitled to the benefit of a rule of law as the most blameless member of society." (Emphasis supplied.)

The test whether error is harmless, it has been aptly stated, "is not * * * whether other proof of guilt is overwhelming" but whether we are able "to say, beyond a reasonable doubt, * * * that [the error] did not contribute to the finding of guilty." (People v. Smith, 38 Ill. 2d 13, 17; see Chapman v. California, 386 U.S. 18, 23-24.) In making this determination, we should keep in mind that it is the jury which must pass upon issues of fact and, ultimately, the question of guilt and that appellate court judges can rarely determine what may have persuaded jurors to reach their verdict. Even when a defendant has confessed, he is not automatically to be considered guilty; he is still entitled to challenge both the truth of his own confession and its voluntariness. Although each of the appellants clearly implicated himself, there still remained a substantial question for the jury concerning the voluntariness of his confession, and this determination may well have been influenced by the improperly admitted statements of his co-defendants. It was reasoning such as this which led us to decide in People v. Baker (23 N.Y.2d 307, 318, supra) that "[these] errors compel a new trial for the three confessing defendants as well as for the nonconfessing defendants (People v. Burrelle [21 N.Y.2d 265], supra). It might well have been the existence of the other confessions which led the jury to conclude that each of the confessions was both truthful and voluntary and the defendants' guilt proven." In the Jackson case, too, we reversed the convictions on the ground that the confession of one defendant implicated his co-defendant, even though the latter had also confessed (22 N.Y.2d 446, supra).

In sum, then, since the use of their co-defendants' out-of-court statements which implicated them violated the constitutional rights of the appellants (see Roberts v. Russell, 392 U.S. 293, supra ; Bruton v. United States, 391 U.S. 123, supra) and since that constitutional error may not be said to be "harmless beyond a reasonable doubt" (Chapman v. California, 386 U.S. 18, 24, supra), the judgment should be reversed and new and separate trials ordered.


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