
    The People of the State of New York, Respondent, v. Henry Dusablon and Emanuel Samperi, Appellants.
    Argued April 20, 1965;
    decided June 10, 1965.
    
      
      Martin Fogelman for Henry Dusablon, appellant.
    I. Admission in evidence at the first trial of a confession taken from appellant Dusablon by the trial Assistant District Attorney before a hearing reporter after appellant had become the accused, without having advised defendant of his right to counsel or that the statement could be used against him, violated defendant’s constitutional rights under the circumstances here. (People v. Stanley, 15 N Y 2d 30; Massiah v. United States, 377 U. S. 201; Escobedo v. Illinois, 378 U. S. 478; Malloy v. Hogan, 378 U. S. 1; Gideon v. Wainwright, 372 U. S. 335; People v. Dorado, 62 Cal. 2d 350; People v. Randazzio, 194 N. Y. 147; People v. Waterman, 9 N Y 2d 561; People v. Donovan, 13 N Y 2d 148.) II. Section 1045-a of the Penal Law is unconstitutional. (Commonwealth v. McCoy, 405 Pa. 23; Williams v. New York, 337 U. S. 241; People v. McLaughlin, 291 N. Y. 480; People v. Levine, 297 N. Y. 144.) III. Substantial errors committed in conducting the second (punishment) trial require that the sentence of death be set aside and the case be remanded to the trial court with direction to impose the sentence of life imprisonment (Penal Law, § 1045-a, subd. 6). The court failed to hold the required 11 mitigating circumstances ’ ’ hearing and make a determination of record with respect thereto. (Thompson v. Wallin, 301 N. Y. 476, 342 U. S. 485; Matter of Lyons v. Robinson, 293 N. Y. 191; People v. Esposito, 287 N. Y. 389.) IV. Refusal to permit voir dire of jurors, and failure to determine, as the statute mandates, whether a new jury is required for the second part of the trial, constituted substantial error. (Marshall v. United States, 360 U. S. 310; United States ex rel. Bloeth v. Denno, 313 F. 2d 364, 372 U. S. 978.) V. The Jackson-Denno violation at the second stage of the trial constituted ‘ ‘ substantial error ” in the sentencing proceeding. (People v. Huntley, 15 N Y 2d 72.) VI. The court’s charge concerning possible release on parole was misleading and inadequate. VII. The trial court’s ambiguous charge (second trial) may have led the jury to conclude it must sentence appellant to death on the first count. VIII. The court erroneously told the jury (first trial) that the prosecutor could say in summation, as he did, that he would never condone police misconduct. (People v. Robinson, 13 N Y 2d 296; People v. Lovello, 1 N Y 2d 436.) IX. The use of a special jury at both trials deprived appellant of due process and equal protection of law, as well as of a fair trial. (Fay v. New York, 332 U. S. 261.) X. Application of sections 1045 and 1045-a of the Penal Law to the present crimes, committed prior to enactment thereof, is unconstitutional. (Calder v. Bull, 3 Dallas [U. S.] 386; People ex rel. Pincus v. Adams, 274 N. Y. 447; Shepherd v. People, 25 N. Y. 406.) XI. If no other error is found, the Jackson v. Denno hearing must be held on the admissibility of the confessions. (Jackson v. Denno, 378 U. S. 368; People v. Huntley, 15 N Y 2d 72.)
    
      Alfred I. Rosner and Henry A. Lowenberg for Emanuel Samperi, appellant.
    I. Dusablon’s confrontation, accusation, and Samperi’s silence in the face thereof were incompetent because, being under arrest, he was under no duty to speak, and the motions to strike should have been granted when made and not denied. (People v. Robinson, 13 N Y 2d 296; People v. Rutigliano, 261 N. Y. 103; Smulczeski v. City Center of Music & Drama, 3 N Y 2d 498; Malloy v. Hogan, 378 U. S. 1.) II. Prejudicial error was committed when the court refused to redact the confessions of Dusablon so as to eliminate all references to Samperi, or to grant a mistrial, or a separate trial. (People v. Fisher, 249 N. Y. 419; Barton v. United States, 263 F. 2d 894; Escobedo v. Illinois, 378 U. S. 478.) III. It was reversible error for the court not to grant Samperi’s written requests relating to Samperi’s alleged confessions; besides, the confessions should have been held inadmissible because Samperi was not advised of his constitutional rights, and, in any event, the jury was inadequately instructed on the issue of voluntariness. (Leyra v. Denno, 347 U. S. 556; Williams v. United States, 328 F. 2d 669; People v. Dorado, 62 Cal. 2d 350.) IV. Samperi’s constitutional rights were violated when the court failed to make a reliable factual determination on the issue of voluntariness as mandated by Jackson v. Denno (378 U. S. 368). (People v. Hovnanian, 22 A D 2d 686; United States ex rel. Mancini v. Rundle, 337 F. 2d 268; Johnson v. Zerbst, 304 U. S. 458; Fay v. Noia, 372 U. S. 391; Hall v. Warden, 313 F. 2d 483, 374 U. S. 809; Walker v. Peppersack, 316 F. 2d 119; United States ex rel. West v. La Vallee, 335 F. 2d 230; People v. West, 12 N Y 2d 1090; United States ex rel. Angelet v. Fay, 333 F. 2d 12; United States ex rel. Carafas v. La Vallee, 334 F. 2d 331.) V. Samperi’s sole defense was that for personal reasons Dusablon committed the homicides after the termination of the robbery and, as to such defense, the court refused to instruct the jury but instead erroneously gave them to understand that abandonment by Samperi of the robbery prior to. its termination was Samperi’s defense. (People v. Ryan, 263 N. Y. 298; People v. Smith, 232 N. Y. 239; 
      People v. Hüter, 184 N. Y. 237; People v. Marwig, 227 N. Y. 382; People v. Sobieskoda, 235 N. Y. 411.) VI. Samper i’s trial under the new law was a violation of his statutory rights to be tried under the old procedure. (People ex rel. Cosgriff v. Craig, 195 N. Y. 190.) VII. The statute (Penal Law, §§ 1045, 1045-a) under which Samperi was tried is violative of procedural due process of law and of the equal protection of the laws under the Fourteenth Amendment of the Constitution of the United States. (Barton v. United States, 263 F. 2d 894; People v. Nisonoff, 293 N. Y. 597; Matthews v. United States, 217 F. 2d 409; United States ex rel. Bloeth v. Denno, 313 F. 2d 364.) VIII. Chapter 994 of the Laws of 1963, as applied to Samperi, was violative of section 10 of article I of the Constitution of the United States (which prohibits a State from passing an ex post facto law) because the change in procedure and the alteration in the rules of evidence relative to punishment worked a substantial detriment to him. In addition, irrespective of the ex post facto issue, many of the items allowed in evidence were inadmissible even under the provisions of subdivision 3 of section 1045-a of the Penal Law, and substantially prejudiced Samperi’s right to have the issue of penalty determined solely on competent testimony. (Barton v. United States, 263 F. 2d 894; Village of Lawrence v. Greenwood, 300 N. Y. 231; People v. Harris, 209 N. Y. 70; United States ex rel. Butler v. Maroney, 319 F. 2d 622; People v. Feldman, 299 N. Y. 153; People v. Nitsberg, 287 N. Y. 183; People v. Richardson, 222 N. Y. 103.) IX. The statutory alterations in procedure and in the legal rules of evidence were substantially detrimental to Samperi. (Kring v. Missouri, 107 U. S. 221; Thompson v. Utah, 170 U. S. 343; Gibson v. Mississippi, 162 U. S. 565; People ex rel. Pincus v. Adams, 274 N. Y. 447; Calder v. Bull, 3 Dallas [U. S.] 386; People v. Hicks, 287 N. Y. 165; Winston v. State, 186 Ga. 573; People v. Green, 201 N. Y. 172.) X. Just because a wide range of information may be included in a probation report, it does not necessarily follow that a statute may retroactively, and without violating a defendant’s State and Federal constitutional rights, make identical information legally admissible evidence for a jury in a second stage trial procedure in which punishment is determined. (Graham v. West Virginia, 224 U. S. 616; United States v. Dalhover, 96 F. 2d 355; Williams v. New York, 337 U. S. 241; People v. Duchin, 
      12 N Y 2d 351; People v. Ray, 172 Misc. 1004.) XI. Substantial error was committed by the court in the manner in which it attempted to ascertain whether certain prejudicial newspaper accounts concerning defendants had been read by the jurors. (United States ex rel. Bloeth v. Denno, 313 F. 2d 364.) XII. Samperi’s constitutional rights under the Fourteenth Amendment of the Constitution of the United States to the effective aid of counsel at all stages of his trial were denied him. XIII. Defendant was denied due process of law because the statute fails to provide fot a hearing in which he would have the opportunity to submit to the court 11 substantial mitigating circumstances ” warranting the discharge of the jury and the imposition by the court of a life sentence (Penal Law, § 1045, subd. 3); and, in any event, the court did not institute or conduct such a hearing. (People v. Dean, 94 Misc. 502; Matter of Lyons v. Robinson, 293 N. Y. 191.) XIV. Samperi was substantially prejudiced because he was not accorded one of the two statutory opportunities of avoiding the death penalty following his conviction of murder in-the first degree. XV. Samperi was denied due process when his request for a voir dire of the jury on the second phase of' the trial was denied. (People v. Doran, 246 N. Y. 409.) XVI. The failure of the prosecutor to make an opening to the jury as to what he would prove on the second phase of the trial violated subdivision 1 of section 388 of the Code of Criminal Procedure and was also a denial to Samperi of due process of law under the Fourteenth Amendment of the Constitution of the United States and of section 6 of article I of the State Constitution. (People v. Romano, 279 N. Y. 392; People v. McLaughlin, 291 N. Y. 480; People v. Levine, 297 N. Y. 144.) XVII. The court’s denial of counsel’s request for a reasonable adjournment was violative of defendant’s rights to due process of law under the Fourteenth Amendment of the Constitution of the United States and under section 6 of article I of the State Constitution. (Chandler v. Fretag, 348 U. S. 3.) XVIII. Prejudicial error was committed when the court refused to charge the jury that the provisions of section 393 of the Code of Criminal Procedure applied to the second stage of the trial. (People v. Elliott, 10 A D 2d 735; People v. Reese, 258 N. Y. 89; Malloy v. Hogan, 378 U. S. 1.) XIX. The jury was given the impression by the court and prosecutor that, if they' imposed two life sentences, Samperi would be eligible for parole after only 26 years and 8 months of imprisonment instead of 53 years and 4 months, at the minimum, if at all (Penal Law, § 1945, subd. 6; Correction Law, § 230, subd. 2). (People v. Miller, 6 N Y 2d 152.) XX. Had the jury determined that the penalty of life imprisonment should be imposed on each of the two counts, the court would have been mandated to impose two consecutive life sentences, and would have had no discretion to make the two life sentences run concurrently and should have so charged, Even if it be held that the court possessed the power to make two life sentences run either concurrently or consecutively, it should so have advised the jury. XXI. Since section 427 of the Code of Criminal Procedure was not complied with in answering the jury’s questions, defendant must be remanded for resentenee (Penal Law, § 1045-a, subd. 6). XXII. The jury’s determination of penalty should have been governed by principle of freedom from reasonable doubt rather than by “ absolute discretion ”, a phrase the court did not even clarify or define. (People v. Ertel, 283 N. Y. 519; People ex rel. Patrick v. Frost, 133 App. Div. 179; People v. Reese, 258 N. Y. 89.) XXIII. The court should at least have charged that, on the issue of penalty, before the jury could take into consideration the evidence relating to collateral crimes, they first would have to find that the corpus delicti of these crimes had been proved, and then be convinced beyond a reasonable doubt that Samperi participated in their commission.
    
      Frank S. Hogan, District Attorney (H. Richard Uviller and Milton M. Stein of counsel), for respondent.
    I. Defendants’ guilt was proved beyond a reasonable doubt. (People v. Ryan, 263 N. Y. 298; People v. Smith, 232 N. Y. 239; People v. Hüter, 184 N. Y. 237; People v. Marwig, 227 N. Y. 382; People v. Sobieskoda, 235 N. Y. 411; People v. Keshner, 304 N. Y. 968; People v. Spohr, 206 N. Y. 516; People v. Collins, 234 N. Y. 355; People v. Moran, 246 N. Y. 100; People v. Walsh, 262 N. Y. 140; People v. Michalow, 229 N. Y. 325; People v. Lunse, 278 N. Y. 303; People v. Nichols, 230 N. Y. 221.) II. Xo error was committed in trying defendants jointly, the court having properly instructed the jury that the statements of each defendant implicating the other could not be used against the other defendant. 
      (People v. Fisher, 249 N. Y. 419; People v. Snyder, 246 N. Y. 491; People v. Doran, 246 N. Y. 409; People v. Rutigliano, 261 N. Y. 103.) III. Defendants are entitled to a hearing of facts on the voluntariness of their confessions, but the present record indicates that no coercive practices were used to obtain the confessions and that the confessions were legally admissible. (Jackson v. Denno, 378 U. S. 368; People v. Huntley, 15 N Y 2d 72; Escobedo v. Illinois, 378 U. S. 478; People v. Randazzio, 194 N. Y. 147.) IV. Defendants were not prejudiced by the use of a special jury. (Fay v. New York, 332 U. S. 261; People v. Agron, 10 N Y 2d 130; Vanderwyde v. Denno, 113 F. Supp. 918, 210 F. 2d 105, 347 U. S. 949; Moore v. New York, 333 U. S. 565.) V. The prosecutor’s trial summation to the jury did not substantially prejudice the defense. VI. The court’s inquiry, at the trial, as to whether the jurors had seen newspaper reports of the trial was properly conducted. (People v. Jelke, 284 App. Div. 211, 308 N. Y. 56.) VII. Section 1045-a of the Penal Law, as applied to the prosecution of defendants, is not an ex post facto law. (People ex rel. Lonschein [Mencher] v. Warden of Queens House of Detention for Men, 43 Misc 2d 109, 15 N Y 2d 663; Williams v. New York, 337 U. S. 241; People v. Ertel, 283 N. Y. 519.) VIII. Section 1045-a of the Penal Law does not violate constitutional rights of due process. (United States v. Dalhover, 96 F. 2d 355; Townsend v. Burke, 334 U. S. 736; United States ex rel. Butler v. Maroney, 319 F. 2d 622; People v. Mardavich, 287 N. Y. 344.) IX. The procedures followed at the sentencing hearing under section 1045-a of the Penal Law were free of substantial error. Section 1045-a of the Penal Law does not require a separate hearing before the Trial Judge aloné on “ mitigating circumstances ”. X. Absent a showing of good cause, a voir dire of the trial jury, before the sentencing hearing was held, would have been improper and permission to conduct such a voir dire was correctly denied to defendants. (Marshall v. United States, 360 U. S. 310.) XI. No opening statement by the People was required. XII. The denial of defense counsel’s inquest for an adjournment prior to commencement of the sentencing hearing was within the court’s' proper discretion. XIII. The court was not in error in requiting that direct examination of a defense witness be conducted by but one counsel. XIV. The court was not in error in refusing to specifically charge, at the sentencing hearing, that no presumption arose from defendants’ failure to testify. (People v. Forte, 277 N. Y. 440.) XV. The court correctly charged the jury on the subject of parole. XVI. The court correctly charged that there was no burden of proof on the issue of sentencing and that determination of penalty was within the jury’s absolute discretion. (People v. Reese, 258 N. Y. 89.) XVII. The court’s charge unambiguously gave to the jury a choice between imposing a penalty of death or of life imprisonment.
   Van Voorhis, J.

Section 1045-a of the Penal Law is not ex post facto, nor was it error to have received nonlegal evidence at the trial determining punishment (People ex rel. Lonschein [Mencher] v. Warden of Queens House of Detention, 15 N Y 2d 663; 43 Misc 2d 109). The former crimes committed by appellants could constitutionally have been considered by a sentencing Judge as germane to probation reports (Williams v. New York, 337 U. S. 241), and, as pointed out in Lonschein, section 1045-a of the Penal Law merely substitutes a jury for a Judge in imposing sentence in this situation. The criminal records of appellants could not, under the former procedure, have been before the jury (People v. Molineux, 168 N. Y. 264). It is possible that, if the jury had not known of appellants’ prior criminal records, they might have recommended life imprisonment in the case of either or both of them, particularly, perhaps, in case of the one who did not fire the fatal shot in this felony murder. Nevertheless, under the former statute, a recommendation of life imprisonment instead of death was not binding upon the Trial Judge, who was empowered to sentence to-death even though the jury recommended life imprisonment (People v. Ertel, 283 N. Y. 519, 522). The idea behind that statute may have been that, in cases such as the present, where a record of prior homicides was before the sentencing Judge but not before the jury, the Judge could impose the more drastic punishment based on circumstances known to him but unknown to the trial jury. However that may be, the circumstance that under the former practice the Trial Judge possessed this power, which could have been exercised in the light of all of the testimony which was before the “ sentencing ” jury in this instance, prevents the new procedure from being ex post facto. The change is procedural, under which the “sentencing” jury acts upon what would previously have been before the Trial Judge. This does not render the new statute ex post facto (People ex rel. Lonschein [Mencher] v. Warden of Queens House of Detention, supra).

Under present subdivision 3 of section 1045-a ‘ ‘ 'evidence may be presented by either party on any matter relevant to sentence including, but not limited to, the nature and circumstanqes of the crime, defendant’s background and history, and any aggravating or mitigating circumstances. Any relevant evidence, not legally privileged, shall be received regardless of its admissibility under the exclusionary rules of evidence.” The court so instructed the jury in this instance, nor was it error to omit to charge that there was any burden of proof on either side. Whatever evidence would have been relevant in the case of a probation report, or otherwise to be considered by a sentencing Judge, is properly admissible before the sentencing jury.

The instruction was not erroneous that it would be possible for a defendant who has been sentenced to life imprisonment to be placed on parole after he had served 26 years and 8 months (Penal Law, § 1945, subd. 6; Correction Law, § 230, subd. 2). Subdivision 4 of section 1045-a requires that the court charge the “sentencing” jury on “the law relating to the possible release on parole of a person sentenced to life imprisonment.” The trial court here performed this obligation imposed on him by law. Appellants challenged the correctness of this instruction on the ground that each was convicted on two counts of felony murder (due to two victims having been killed), and assert that the jury should have been charged that the jury could direct that each appellant serve two life sentences consecutively. Apart from the impossibility of sentencing the same defendant to serve several life sentences, one after the other, it is plain that public policy as declared by the Legislature requires that no person sentenced for life shall be ineligible for parole after the lapse of 26 years and 8 months as charged by the court in this case. The prohibition of suspension of a sentence for a crime punishable by life imprisonment (Penal Law, § 2188) has nothing to do with the case. When one life sentence runs concurrently with another, as in this case, it is not “ suspended.” If, for example, a coram nobis proceeding were to disclose that one of the sentences had been imposed illegally, a convict would be held under the other sentence imposed to run concurrently. That could not be true if the effect were the same as though the other sentence had been suspended. This jury was instructed that it had the power to direct life sentences on each count if the jurors saw fit to do so, but an instruction was correctly declined that the jury could recommend that life sentences on both counts could run successively rather than concurrently. The jury had to be instructed that these men were capable of parole, in the discretion of the Parole Board, after serving 26 years and 8 months. Neither appellant has a right to complain.

Under our recent decision in People v. Gunner (15 N Y 2d 227) the confessions of appellants were not required to be excluded for the reason that they were not previously informed by the police of their right to counsel or that their statements could be used against them. There was no request for representation by attorney when appellants were interrogated by the police, nor was an attorney in attendance and refused admittance (cf. People v. Donovan, 13 N Y 2d 148; Escobedo v. Illinois, 378 U. S. 478).

We have considered the other points raised and find no error except that a hearing should be held by the Judge on the voluntariness of appellants’ confessions under the holding of the United States Supreme Court in Jackson v. Denno (378 U. S. 368).

The convictions of appellants should be affirmed, subject to hearings by the Trial Judge on the voluntariness of appellants ’ confessions pursuant to Jackson v. Denno (supra).

Chief Judge Desmond and Judges Dye, Fuld, Burke, Scileppi and Bergan concur.

Judgments of conviction modified to the extent of directing a hearing on the issue of the voluntariness of the confessions introduced as a part of the People’s case at the trial and, as so modified, affirmed. Case remitted to the Supreme Court, New York County, for such hearing (People v. Huntley, 15 N Y 2d 72).  