decided: July 2, 1969.
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
VIVEN HARRIS, APPELLANT
People v. Harris, 31 A.D.2d 828, affirmed.
Judges Burke, Scileppi, Bergan, Breitel and Jasen concur in Per Curiam ; Chief Judge Fuld concurs in a separate opinion.
Author: Per Curiam
On this appeal from a judgment convicting the defendant of selling narcotics, the defendant raises two points.
The first concerns a statement obtained from him after his arrest and under circumstances which concededly violated the requirements prescribed by the Supreme Court in Miranda v. Arizona (384 U.S. 436). In its direct case, the People did not offer the statement in evidence. On cross-examination, however, and over the defendant's objection, the statement was employed extensively by the prosecutor in cross-examining the defendant who had taken the witness stand in his own defense. The statement was at complete variance with the account given by the defendant on direct examination although it was no more inculpatory than his direct testimony. Such use of the statement for purposes of impeachment is authorized by our decision in People v. Kulis (18 N.Y.2d 318), to which we adhere.
The defendant's second contention is that use of the statement should, in any event, be barred because the People failed to comply with section 813-f of the Code of Criminal Procedure which provides that, "where the people intend to offer a confession or admission in evidence * * * the people must * * * give written notice of such intention to the defendant". We agree with the decision of the Appellate Division herein -- and not with its later, seemingly inconsistent, position in People v. Torres (32 A.D.2d 791) -- that section 813-f is not applicable. Section 813-f is not intended as a discovery device; its function -- as the very language of the statute itself indicates (see Code Crim. Pro., pt. VI, tit. 11-C) -- is to afford a defendant an opportunity for a hearing under section 813-g to determine the voluntariness of his confession or admission. Accordingly, when the prosecution neither offers nor plans to offer a statement in evidence against the defendant, the section in question is just not applicable. Moreover, where, as in the present case, a statement obtained in violation of Miranda is used solely for impeachment purposes, no purpose would be served by requiring compliance with section 813-f, and the People were not obligated to furnish the notice there prescribed.
The judgment should be affirmed.
Chief Judge Fuld (concurring). Some three years ago, the court held in People v. Kulis (18 N.Y.2d 318) that, although a statement taken from a defendant in violation of his constitutional rights -- under Miranda v. Arizona (384 U.S. 436) -- may not be received in evidence against him, it could, nevertheless, be used for purposes of cross-examining him if he takes the witness stand and testifies in his own defense. This seemed wrong to Judge Keating and to me, and we dissented (18 N.Y.2d, at pp. 323-324) on the ground that the use of an illegally obtained confession or statement, even for impeachment purposes, violates a court's responsibility to preserve and maintain basic constitutional rights. Sanctioning the admissibility of such statements affords the very sort of incentive for interrogation without the warnings required by Miranda (384 U.S. 436, supra) that the Supreme Court was attempting to eliminate when it ruled that the product of such interrogations could not be used as evidence of guilt. Not alone a need to deter official misconduct but a regard for "the imperative of judicial integrity" (Elkins v. United States, 364 U.S. 206, 222) seems to me to mandate that a confession which was unlawfully taken from a defendant should not be used for any purpose.
I still believe that this is so, and I am reinforced in that view by the fact that, since the Kulis decision was handed down, at least a dozen tribunals, including the highest courts of three states and six Federal Courts of Appeals, have specifically rejected the rule adopted in Kulis and held an illegally procured statement completely unusable.*fn1 However, in light of the majority's present determination to adhere to the decision in People v. Kulis (18 N.Y.2d 318, supra), I deem myself constrained to cast my vote for an affirmance.