
    The People of the State of New York, Respondent, v. George Burrelle, Eugene Weston and Roosevelt Grant, Appellants.
    Argued October 23, 1967;
    decided December 29, 1967.
    
      
      Harris B. Steinberg, Gerald Zuckerman and Stanley S. Arkin for Roosevelt Grant, appellant.
    I. The People’s evidence was insufficient, as a matter of law, to sustain the verdict of guilt. (People v. Weiss, 290 N. Y. 160; People v. La Belle, 18 N Y 2d 405; People v. Campbell, 1 A D 2d 982; People v. Baldiseno, 266 App. Div. 909; People v. Koerber, 244 N. Y. 147; Morissette v. United States, 342 U. S. 246.) II. Defendant Grant was deprived of a fair trial and of his Federal and State constitutional rights to due process and confrontation because of the admission in evidence of statements by his codefendants implicating him in the alleged crime. (People v. Fisher, 249 N. Y. 419; People v. Snyder, 246 N. Y. 491; People v. Doran, 246 N. Y. 409; People v. Feolo, 282 N. Y. 276; Delli Paoli v. United States, 352 U. S. 232; Evans v. United States, 375 F. 2d 355; United States ex rel. Headley v. Fay, 209 F. Supp. 153; State v. Green, 46 N. J. 192; People v. Driscoll, 20 A D 2d 880; People v. Schwarz, 10 A D 2d 17; People v. Lombard, 4 A D 2d 666; People v. La Ruffa, 2 A D 2d 765; United States ex rel. Floyd v. Wilkins, 367 F. 2d 990; People v. Aranda, 63 Cal. 2d 518.) III. It was reversible error to refuse the requested charge that, if one of the defendants had killed the deceased as an independent act unconnected with an underlying felony, the other two defendants should be acquitted. (United States v. O’Connor, 237 F. 2d 466; Strauss v. United States, 376 F. 2d 416; People v. Mussenden, 308 N. Y. 558; People v. Sobieskoda, 235 N. Y. 411; People v. Masselli, 10 A D 2d 45; People v. Walsh, 262 N. Y. 140.)
    
      Sol Neil Corbin and Nahum L. Gordon for George Burrelle, appellant.
    I. The trial court erred in not charging that, in determining the voluntariness of Burrelle’s confession, the jury was to take specific account of the failure to advise Burrelle of his right to counsel and of his privilege against self incrimination. (People v. McQueen, 18 N Y 2d 337; Miranda v. Arizona, 384 U. S. 436; Haynes v. Washington, 373 U. S. 503; Johnson v. New Jersey, 384 U. S. 719; People v. Brown, 24 A D 2d 740; 
      People v. Huntley, 15 N Y 2d 72.) II. The trial court erred in not directing a verdict of acquittal for Burrelle because a defendant other than Burrelle shot the victim for personal reasons and not in furtherance of the robbery. Alternatively, the trial court should have charged that the jury was required to acquit Burrelle if they so found as a matter of fact. (People v. Elling, 289 N. Y. 419; People v. Ryan, 263 N. Y. 298; People v. Walsh, 262 N. Y. 140; People v. Moran, 246 N. Y. 100; People v. Sobieskoda, 235 N. Y. 411.) III. The trial court erred in refusing to declare a mistrial after the prosecution vouched for the credibility and integrity of Detective Cirillo. Alternatively, the trial court erred in refusing to charge the jury that the prosecution’s remarks were improper and that the jury was required to disregard them. (People v. Lombard, 4 A D 2d 666; People v. Lovello, 1 N Y 2d 436; People v. Wright, 17 A D 2d 151; People v. Gregory, 19 A D 2d 749; People v. Stratton, 286 App. Div. 323,1 N Y 2d 664; People v. Jackson, 7 N Y 2d 142; People v. Birch, 6 A D 2d 28; People v. Montgomery, 21 A D 2d 904, 15 N Y 2d 732, 382 U. S. 853.) IV. Defendant Burrelle was deprived of a fair trial by the trial court’s refusal to grant his motion for a severance and the consequent admission in evidence of statements by his codefendants implicating bim in the alleged crime. (People v. Donovan, 13 N Y 2d 148.)
    
      Isidore Silver and Harold O. N. Frankel for Eugene Weston, appellant.
    I. The introduction of coappellant’s pretrial statements identifying appellant violated appellant’s right to fair trial under the Sixth and Fourteenth Amendments of the United States Constitution. (People v. Driscoll, 20 A D 2d 880; People v. Aranda, 63 Cal. 2d 518; United States v. Delli Paoli, 229 F. 2d 319, 352 U. S. 232; People v. Fisher, 249 N. Y. 419; People v. La Belle, 18 N Y 2d 405; State v. Green, 46 N. J. 192; United States v. Bozza, 365 F. 2d 206.) II. The trial court committed reversible error by declining to charge that if the homicide was committed as an independent act of one of the conspirators then the others should be acquitted. (People v. Sobieskoda, 235 N. Y. 411; People v. Walsh, 262 N. Y. 140; People v. Ryan, 263 N. Y. 298; People v. Marwig, 227 N. Y. 382; People v. Collins, 234 N. Y. 355.) III. Defendant’s motion to dismiss after the People’s case was improperly denied. Appellant’s conviction must be reversed since he was not proven guilty beyond a reasonable doubt as a matter of law. (People v. Peller, 291 N. Y. 438; People v. Crum, 272 N. Y. 348; People v. Saldinger, 269 App. Div. 849; People v. Tapia, 11 A D 2d 679 ; People v. Jackson, 7 N Y 2d 142; People v. Patterson, 21 A D 2d 356; People v. Campbell, 1 A D 2d 982; People v. Baldiseno, 266 App. Div. 909.) IV. The trial court committed reversible error by refusing to declare a mistrial or to otherwise admonish the prosecution for vouching for the character of a key witness. (People v. Wright, 17 A D 2d 151; People v. Gregory, 19 A D 2d 749; People v. Swanson, 278 App. Div. 846.) V. The prosecution’s comment on appellant’s failure to testify at the voir dire on the voluntariness of his alleged statement and the failure of the trial judge to strike such comment violate due process of law. (Griffin v. California, 380 U. S. 609; People v. Leavitt, 301 N. Y. 113; People v. Norton, 285 App. Div. 1165; People v. Watson, 216 N. Y. 565.)
    
      Frank S. Hogan, District Attorney (H. Richard Uviller and Alan F. Scribner of counsel), for respondent.
    I. The guilt of defendants was proved beyond a reasonable doubt as a matter of law. (People v. Schacht, 132 Misc. 560; People v. Solomon, 12 App. Div. 627; People v. Madas, 201 N. Y. 349; Brooks v. People, 49 N. Y. 436; People v. Hopkins, 126 App. Div. 843; People v. Becker, 215 N. Y. 126; People v. Elling, 289 N. Y. 419; People v. Huter, 184 N. Y. 237; People v. Spohr, 206 N. Y. 516; People v. Marwig, 227 N. Y. 382; People v. Smith, 232 N. Y. 239; People v. Collins, 234 N. Y. 355; People v. Lunse, 278 N. Y. 303; People v. Michalow, 229 N. Y. 325; People v. Chapman, 224 N. Y. 463; People v. Nichols, 230 N. Y. 221.) II. The admission into evidence of confessions of codefendants did not deny a fair trial to the remaining confessing defendant. (People v. Fisher, 249 N. Y. 419; People v. Snyder, 246 N. Y. 491; People v. Doran, 246 N. Y. 409; Delli Paoli v. United States, 352 N. S. 232; People v. Lombard, 4 A D 2d 666; Lutwak v. United States, 344 U. S. 604; Opper v. United States, 348 U. S. 84; Blumenthal v. United States, 332 U. S. 539; People v. Gowasky, 244 N. Y. 451; People v. Barnes, 202 N. Y. 77; United States v. Bozza, 365 F. 2d 206; People v. La Belle, 18 N Y 2d 405; United States ex rel. Floyd v. Wilkins, 367 F. 2d 990; United States ex rel. Hill v. Deegan, 268 F. Supp. 580.) III. The prosecutor’s summation was free of reversible error. (Griffin v. California, 380 U. S. 609; People v. Lovello, 1 N Y 2d 436; People v. Jackson, 7 N Y 2d 142; People 
      v. Wright, 17 A D 2d 151; People v. Marks, 6 N Y 2d 67; People v. Castillo, 16 A D 2d 235.) IV. It was not error for the court to refuse to charge the jury to take into account the failure to give Miranda warnings. (Miranda v. Arizona, 384 U. S. 436; Johnson v. New Jersey, 384 U. S. 719; People v. McQueen, 18 N Y 2d 337; Haynes v. Washington, 373 U. S. 503; People v. Horton, 18 N Y 2d 355.) V. It was not error for the court to refuse a request to charge specially matter fully covered in the main charge. (People v. Rossi, 11 N Y 2d 379; People v. Sobieskoda, 235 N. Y. 411; People v. Walsh, 262 N. Y. 140; People v. Chapman, 224 N. Y. 463.)
   Burke, J.

The defendants in this case are charged with murder in the first degree. Following their arrests, defendants Burrelle and Weston made admissions and gave statements, each claiming that another of the defendants had shot the victim after the victim had struck the man who allegedly fired the gun. Defendant Grant denied that there had been a robbery or that he had shot anyone. Nevertheless, he did concede that there had been an attempt by “X” to obtain money owed him by the victim and that this precipitated the firing of the shot. They were tried jointly for murder in the first degree, after a pretrial motion for separate trials by defendant Burrelle was denied.

At the outset, it is to be noted that the physical charactéristics of these three defendants were totally different. Indeed, they had in the past acquired the nicknames “ Fats ”, “Slim” and ‘ Shorty ’ ’. Grant was the heaviest by far of the lot, while Weston was considerably taller than Burrelle. Upon the trial, the statements and confessions of the various defendants were redacted by use of the letter “X” wherever another of the defendants was referred to, whether by their proper name or by nickname, but whatever protection from prejudice this might have afforded the other defendants was vitiated by the testimony of an assistant district attorney and two police officers who, in testifying as to the taking of these statements, recounted how “ Fats ”, “ Slim ” and “Shorty ” were implicated in the crime by the various declarants. This testimony was in accord with the written, redacted confessions previously introduced, with the exception that the persons referred to initially as “ X ” were now unmistakably identifiable to the jury.

The situation here is not unlike People v. La Belle (18 N Y 2d 405). There, we held (p. 409) that, while a trial court might, be acting properly in refusing to order severance prior to the trial, nevertheless, this court may take a retrospective view and determine whether ‘‘ ‘ injustice or impairment of substantial rights unseen at the beginning ’ has occurred (People v. Fisher [249 N. Y. 419, 427]).” In this case, the initial refusal to grant a severance may well have been proper. Indeed, the attorneys for defendants Weston and Grant opposed this motion by Burrelle for “strategic” purposes. The use of properly redacted confessions in joint trials without violating the rights of the defendants involved is well recognized. However, when testimony is later introduced to sterilize the effect of the redaction, the defendants are at that time deprived of a fair trial. As stated in La Belle, the disposition of such a motion for severance is subject to retrospective analysis.

Clearly, Burrelle, as movant for a severance, is entitled to a new and separate trial. In like manner the references to defendant Grant as “ Fats ” were very prejudicial and also call for a separate trial. In the unique circumstances of this joint trial defendant Weston must necessarily be tried separately to satisfy standards of justice.

The judgments of conviction should be reversed, and separate trials ordered.

Bebgait, J. (dissenting).

The guilt of the three defendants is established beyond reasonable doubt by clear and independent proof of circumstances pointing unmistakably to the fact they robbed and killed their victim on the street. The judgments are now being reversed because of the conclusion that the trial court should, in the course of the trial, have sensed the difficulty of concealing from the jury the identification of codefendants in confessions or admissions made by individual defendants and then to have ordered separate trials.

It is felt that the deletions (“ redactions ”) in each of the confessions were insufficient to protect the codefendant whose identity could be spelled out or guessed by the jury. Efforts were made at the trial effectively to delete the hearsay. Most redactions or deletions of this kind give only the illusion of protection and, indeed, when performed thoroughly enough may result in reversal of the conviction of the defendant who has made a confession (People v. La Belle, 18 N Y 2d 405).

At best deletions in written confessions pique the jury's curiosity and leave incomplete in the record the full effect of both written and oral admissions.

It is settled law, and the court seems not to be changing it, that even when a confession sets forth the name of a codefendant, a separate trial is not mandated, the theory being that the jury will heed the Judge's instruction to consider the confession only in the case of the person who made it (People v. Fisher, 249 N. Y. 419; Delli Paoli v. United States, 352 U. S. 232). If this is based on an unreliable fiction, it is no more unreliable than automatic faith in redactions. To make a rule as to separate trials rest on the effectiveness of redactions is to create a new source of litigation in the criminal law and a new source of speculation on what is effective and what is ineffective deletion in a myriad of different situations. (See, e.g., People v. Aranda, 63 Cal. 2d 518, 531-532; State v. Green, 46 N. J. 192.)

If Fisher is still the law, we should affirm these judgments; if it is not, that decision should be overruled.

The judgments should be affirmed.

Chief Judge Fuld and Judges Van Voorhis, Breitel and Keating concur with Judge Burke; Judge Bergan dissents and votes to affirm in a separate opinion in which Judge Scileppi concurs.

Judgments reversed and new separate trials ordered.  