
    The People of the State of New York, Respondent, v. Carl De Flumer, Jr., Appellant.
    Argued April 22, 1965;
    decided June 10, 1965.
    
      L. Robert Leisner for appellant.
    I. The confession of the 14-year-old boy was coerced. (Gallegos v. Colorado, 370 U. S. 49; Haley v. Ohio, 332 U. S. 596; Matter of Dennis, 20 A D 2d 86.) II. A conviction on a plea of guilty based -on a coerced confession is invalid. (Chambers v. Florida, 309 U. S. 227; Herman v. Claudy, 350 U. S. 116.) III. Special care must be used in scrutinizing the record in the case of a child. In the case of a 14-year-old boy and his confession he cannot be judged by adult standards. IV. A conviction on proceedings which as a matter of record applied prohibited constitutional standards to determine whether a confession was voluntarily given is invalid under the due process clause of the Federal Constitution. (Rogers v. Richmond, 365 U. S. 534.) V. A plea, made involuntarily and in ignorance, cannot be asserted as a waiver of constitutional rights. (United States ex rel. De Flumer v. La Vallee, 216 F. Supp. 137.) VI. “Fact finding’’ that a 14-year-old boy was mature is barred by constitutional law. (People v. Oliver, 1 N Y 2d 152; People v. Codarre, 10 N Y 2d 361.) VII. The guilty plea can neither be based on a coerced confession nor on proceedings which apply prohibited constitutional standards to the confession.
    
      John T. Garry, II, District Attorney (J. Raymond Fisher of counsel), for respondent.
    I. There was no testimony of any kind, either in 1947 or in this coram nobis proceeding, to establish that the confession of this defendant was not a free, voluntary one. II. There was no testimony of any kind that consideration was not given to defendant’s age at all stages of the case by the police officers and the office of the District Attorney and the court in the coram nobis proceeding hearing. III. The Federal and State Constitutions do not bar the taking of a voluntary confession by a 14-year-old boy. (People v. Nicholson, 11 N Y 2d 1067, 371 U. S. 929.) IV. In the coram nobis proceeding, the legality of the confession was not measured by adult standards. (Gallegos v. Colorado, 370 U. S. 49; Haley v. Ohio, 332 U. S. 596; Chambers v. Florida, 309 U. S. 227.)
   Dye, J.

The defendant, at the time of the commission of the crime of which he was convicted, was a youth just short of 15 years. Emphasis upon this fact tends to divert, if not obliterate, the factors which led to his indictment for murder in the first degree and his eventual plea of guilty to a lesser degree of homicide. The circumstances surrounding such plea were- fully explored in the coram nobis hearing and sympathetically considered, from the totality of which the only rational conclusion is that the confession was voluntary and that the plea of guilty to murder in the second degree was offered and accepted as a humane disposition of an indictment which, if sent to trial, might well have resulted in a conviction and the mandatory death sentence. There was no denial of due process under the law then existing. The prior confession which met all requirements of voluntariness was not used or received in evidence. The plea of guilty was entered only after a thorough and carefully weighed consideration of all relevant factors. The wisdom of such a course was fully recognized by defendant’s assigned counsel, a former Judge whose competence and skill were not questioned and who was acting with the full approval of the defendant’s parents and the defendant himself. The plea was voluntary and deliberate and made with a single purpose of avoiding the risks incident to a trial of the indictment. Nothing developed in the coram nobis hearing indicates the contrary. This situation, except for the age of defendant, falls squarely within the rule of People v. Nicholson (11 N Y 2d 1067, cert. den. 37 U. S. 929; see, also, People v. Codarre, 10 N Y 2d 361; People v. Dash, 16 N Y 2d 493; People v. Griffin, 16 N Y 2d 508). The appellant’s sole ground for avoiding the impact of that decision is that the defendant’s youth is enough to outweigh all other considerations, including the interest of society, in bringing to judgment the perpetrator of a wanton and senseless slaying.

On this record, there is in truth and fact no showing that the conviction in any way depended on a substantial deprivation of a constitutional right warranting a vacatur of the within judgment of conviction. Certainly, at that time the defendant had a choice whether to plead not guilty and stand trial, or to enter a plea of guilty and avoid trial. The fact that, under the circumstances then existing, he chose to plead guilty to a lesser degree of homicide to cover the indictment affords no basis for dismissing the indictment at this late date.

The order should be affirmed.

Burke, J. (dissenting).

The defendant, as a child of 14, was taken from his home at 9:30 p.m. on the evening of March 15, 1947 and interrogated by police officers. Later that night a formal confession was taken by the District Attorney at his office. When the defendant’s parents learned at midnight that he was charged with murder they went to the police station, but were unable to see the defendant. The following morning, March 16, they were not allowed to see the defendant until after his preliminary arraignment in the Magistrate’s Court. Subsequent to the arraignment they talked with him for a short time before Ms removal to the county jail. On the 17th of March, the parents asked permission to see the boy, but were instructed to return the following day. The District Attorney on the 17th, accompanied by another official, interrogated the defendant at the county jail and had him mark a pair of pliers and sign a photo. On March 18 the Grand Jury returned an indictment of first degree murder and- on that day the parents were permitted to see the hoy. Thereafter the defendant was assigned defense counsel.

Faced with the fact that the confession was the ‘ ‘ fundamental element in the construction of the People’s case”, defendant pleaded guilty to the reduced charge of murder in the second degree on June 30, 1947. At the time of sentence on July 7, 1947, in answer to the question put by the court ‘ Have you any legal cause to show why judgment should not be pronounced against you? ”, the defense counsel stated to the court in part: ‘1 When the assignment reached me, of course, there had been a confession; a confession by this juvenile taken late at night on the day that this offense occurred, without the aid of counsel, and without the guidance of parents, and I searched that I might be able to find there was no inflexible rule of law which would prevent me from attacking, at least, the legality of such a confession. But I found to my amazement I could get no comfort from the law, because everything was measured by the standard of adult responsibility ”.

By this coram nobis proceeding defendant seeks to have the guilty plea and the sentence vacated. The basis for relief is the assertion that because of his youth the guilty plea was not a voluntary one and that the acceptance of the plea when the court knew of the circumstances of the confession and its influence in inducing the plea deprived him of due process of law.

The County Court found that there was no deprivation of defendant’s constitutional rights. The Appellate Division held that the defendant’s statements were not coerced and that it could not be reasonably found that the statements forced the plea. Furthermore, it found that the question of the legality of the confession was waived by the guilty plea.

I find the methods used in obtaining the confession and taking the plea indicate that the child’s rights were not fairly protected; therefore, due process compels an invalidation of the conviction.

Coram nobis is the appropriate remedy where a defendant has been denied due process of law. (People v. Silverman, 3 N Y 2d 200.)

Here the guilty plea of the child rests on proceedings where the law applied concerned * ‘ ‘ the more exacting standards of maturity ’”. [A child] cannot be compared with an adult in full possession of his senses and knowledgeable of the consequences of his admissions ” (Gallegos v. Colorado, 370 U. S. 49, 53, 54). To subject a child in the absence of his parents or friend or counsel to questioning which might have and was intended to convict him is a violation of a basic right of individual freedom. Two weeks before this plea was accepted by the trial court, the United States Supreme Court granted a writ of certiorari in a case involving the taking of a confession from a 15-year-old boy. Within seven months., the United States Supreme Court in that case held that due process would not permit such a confession to be used by the prosecution because it is impermissible to thus interrogate a child and take a formal statement. (Haley v. Ohio, cert. granted June 16, 1947 [331 U. S. 803], 332 U. S. 596 [1948].) Even in the Haley case where it appeared that an extensive warning was read to a boy about the right to remain silent and the uses of the statement in the court, the confession of the lad of 15 was found to be involuntary.

That conclusion does not dispose of all of the respondent’s contentions. We have held, the People argue, that, even if a confession is involuntary, a judgment of conviction will be sustained where it is based upon a plea of guilty which is knowingly and voluntarily entered. (People v. Nicholson, 11 N Y 2d 1067, cert. den. 371 U. S. 929; People v. Dash, 16 N Y 2d 493; People v. Griffin, 16 N Y 2d 508.) But the decisions in Nicholson, Dash and Griffin are not binding as there was no statement made in those cases to the court at the time of the plea or of the sentence that a .confession, the legality of which was questionable, had induced, the plea. In this case there was an explicit statement made by the defense counsel to the court suggesting the need of caution; (See People v. Serrano, 15 N Y 2d 304.)

The guilty plea of this defendant cannot stand on proceedings wherein all concerned in a mistaken belief applied prohibited constitutional standards (Haley v. Ohio, 332 U. S. 596, 599, supra).

The People, nevertheless, insist that since the plea was not coerced by the law-enforcement authorities or the court that that is the end of the matter. “ [I]f we took that position, it would, with all deference, be in callous disregard of this boy’s constitutional rights ”. (Gallegos v. Colorado, 370 U. S. 49, 54, supra.) The defense counsel made it very clear to the court that the guilty plea was compelled because of the confession which he believed would be judged by adult standards in spite of its debatable legality. In other Avords, the defense counsel believed that the child was facing death in the impending trial and grudgingly entered the plea of guilty. Such a plea is a nullity.

It was violative of due process to permit a 15-year-old boy to plead guilty to murder because of the existence of such a confession. Counsel’s statement directed the court’s attention to a plea given under protest. This should have moved the court to reject it or at least take it under advisement. (People v. Serrano, 15 N Y 2d 304, supra.)

In 1947, since the conviction of a child for murder Avas ‘ ‘ shocking ” to think of (see People v. Oliver, 1 N Y 2d 152,162; People v. Turk, Queens County Ct. [1946], not reported), the taking of a guilty plea of murder from the defendant called for careful deliberation. Of course the amendment of 1948 to section 486 of the Penal Law, which provided that children could not be tried for homicide, is not applicable to this case. But the correspondence in the Bill Jacket (L. 1948, ch. 554, N. Y. State Library Leg. Ref. Sec.) did indicate that the amendment was the subject - of earnest and open discussion for over two years before its enactment. In the light of the strong public criticism of the existing law (see People v. Turk, Queens County, defendant acquitted May 7, 1946—not reported, supra; see, also, remarks of then Asst. Queens County District Attorney, J. Irwin Shapiro, that the case ‘ ‘ has served to focus attention on the pitiful inadequacies of our criminal code * * ® [where] the People of the State of New York [were] proceeding against a 14-year-old boy in a criminal court ”, New York Times, May 8, 1946, p. 29, col. 4) and, in light of plans to transfer such charges to the Children’s Courts, the court should not have accepted the plea without further inquiry into the trend of the law in regard to the responsibility of juveniles in homicide cases.

In a nutshell, since the defendant entered his plea to a Judge, unconversant with his rights and the protection of due process, this conviction was on proceedings which as a matter of record applied prohibited constitutional standards. In Rogers v. Richmond (365 U. S. 534, 544) the monition was given that the Trial Judge always has the duty of making a determination according to correct constitutional standards. In view, therefore, of the constitutionally inadequate test applied by the courts below in determining whether the plea was voluntarily given, the judgment of conviction should be reversed and the indictment dismissed (cf. Chambers v. Florida, 309 U. S. 227).

Chief Judge Desmond (dissenting).

I concur with Judge Burke for reversal. Besides the authorities cited in his opinion, we have precedents in our own court which cry out for relief for this appellant. In People v. Oliver (1 N Y 2d 152, 162), ordering the dismissal of a first degree murder indictment, we approved and applied the concept expressed in statutory amendments and in a gubernatorial message that it was a shocking thought ” that children 7 to 15 years old could be convicted of felonies and even sentenced to death. The Oliver boy whose indictment Ave dismissed was 14 years old when he killed his brother in 1945. The present defendant’s homicidal act was committed two years later in 1947. Hoav could the earlier killer escape punishment and the later culprit still be kept in prison, many years later? The circumstance that Oliver’s trial was delayed until after the statutory changes of 1948 does not explain away this glaring unequality. In the first People v. Codarre case (10 N Y 2d 361, 365), dealing with a 1943 killing by a 13-year old, wo noted that the 1948 amendment was not applicable but held nevertheless that ‘ ‘ the taking of a guilty plea of murder from so young a defendant called for an extreme measure of caution ’ ’. The facts set out in the first paragraph of Judge Burke’s dissenting opinion here make clear the total absence of such required protection. As in Oliver’s case, a new trial is now impossible and the only Avay of dealing with this situation (18 years’ imprisonment for a 15-year-old boy) is to reverse, grant the petition and dismiss the indictment.

Judges Van Voorhis, Scileppi and Bebgan concur with Judge Dye ; Judge Burke dissents in an opinion in which Chief Judge Desmond and Judge Fuld concur; Chief Judge Desmond dissenting also in a separate opinion in Avhich Judges Fuld and Burke concur.

Order affirmed.  