
    The People of the State of New York, Respondent, v. Artemio Rodriguez Rodriguez and Rafael Negron Carde, Appellants.
    Argued March 1, 1962;
    decided May 10, 1962.
    
      
      Curtis L. Lyman and Hubert J. Gillette for Artemio Rodriguez Rodriguez, appellant.
    I. The court erred in granting the motion of the People to dismiss indictment No. 454, and denying the demurrer of defendant to indictment No. 464. (People v. Benson, 208 Misc. 138; People v. Morrell, 196 Misc. 1016.) II. The trial court erred in denying defendant’s motion for permission to inspect the grand jury minutes with respect to indictment No. 464. (People v. Glen, 173 N. Y. 395.) III. The court erred in receiving in evidence the statements of defendant Rodriguez made on January 22, 1961 in the Medina police station. Statements were given by Rodriguez to the police after he was confronted with evidence obtained from him through illegal search and seizure and amounted to testimonial compulsion. (Mapp v. Ohio, 367 U. S. 643; Weeks v. United States, 232 U. S. 383; Boyd v. United States, 116 U. S. 616; Wolf v. Colorado, 338 U. S. 25; People v. Defore, 242 N. Y. 13; Silverthorne Lbr. Co. v. United States, 
      251 U. S. 358; Nardone v. United States, 308 U. S. 338; McGinnis v. United States, 227 F. 2d 598; Takakashi v. United States, 143 F. 2d 118; Nueslein v. District of Columbia, 115 F. 2d 690; Silverman v. United States, 365 U. S. 505.) IV. The written statement of Artemio Rodriguez was inaccurate. V. The obtaining of the statements from Rodriguez was a violation of due process of law. VI. The trial court made errors in rulings which materially affected the rights of defendant. (Takakashi v. United States, 143 F. 2d 118.)
    
      Hamilton Doherty and Vincent D. Cardone for Rafael Negron Carde, appellant.
    I. The court erred in admitting into evidence the testimony of the witness Ronald A. Gardner relative to alleged statements made by defendant Carde on January 25, 1961. (People v. Spano, 4 N Y 2d 256, 360 U. S. 315; People v. Di Biasi, 7 N Y 2d 544; People v. Waterman, 9 N Y 2d 561; People v. Sas, 172 Misc. 845; People v. Strope, 151 Misc. 580.) II. The illegal search and seizure of the premises of defendant Rodriguez on January 22,1961 contaminated all evidence found as a result thereof and all statements given as a result of the confrontation of defendants or either of them with the fruits of such illegal search and seizure. (Mapp v. Ohio, 367 U. S. 643; Silverthorne Lbr. Co. v. United States, 251 U. S. 385; Nueslein v. District of Columbia, 115 F. 2d 690; Takakashi v. United States, 143 F. 2d 118; Nardone v. United States, 308 U. S. 338.) III. It was error to deny the motion of defendant-appellant Carde for a separate trial. (People v. Fisher, 249 N. Y. 419; People v. Snyder, 246 N. Y. 491; People v. Wargo, 149 Misc. 461.) IV. The witness Ronald A. Gardner was not a qualified interpreter. V. There was insufficient evidence as a matter of law to sustain a conviction against defendant Carde. (People v. Ledwon, 153 N. Y. 10; People v. Oyola, 6 N Y 2d 259.) VI. The court erred in refusing to admonish the jury as to the binding effect of the statements of defendants read at their request at the close of the trial.
    
      Franklin B. Cropsey, District Attorney (Leonard Finkelstein of counsel), for respondent.
    I. Statements by Rodriguez on January 22, 1961 in the Medina police station were properly received in evidence. (United States v. Warrington, 17 F. R. D. 25; Nardone v. United States, 308 U. S. 338; White v. United 
      
      States, 194 F. 2d 215; Go-Bart Co. v. United States, 282 U. S. 344; United States v. Rabinowits, 339 U. S. 56; People v. Loria, 10 N Y 2d 368; Draper v. United States, 358 U. S. 307; Brinegar v. United States, 338 U. S. 160; Amos v. United States, 255 U. S. 313; United States v. Shules, 65 F. 2d 780; United States v. Sclafani, 265 F. 2d 408; United States v. Martin, 176 F. Supp. 262; United States v. Sferas, 210 F. 2d 69, 347 U. S. 935; Mapp v. Ohio, 367 U. S. 643.) II. Statements by Carde were properly received in evidence and did not result from a search of Rodriguez ’ premises or confrontation of articles there obtained. III. The testimony of Gardner regarding Carde’s statements on January 25,1961 was properly received in evidence. (Spano v. New York, 360 U. S. 315; People v. Di Biasi, 7 N Y 2d 544; People v. Waterman, 9 N Y 2d 561; People v. Meyer, 14 A D 2d 241,11 N Y 2d 162; Culombe v. Connecticut, 367 U. S. 568; People v. Lane, 10 N Y 2d 347.) IV. Section 292-A of the Code of Criminal Procedure, providing for a superseding indictment, did not conflict with Rodriguez’ constitutional right to a speedy trial, which was accorded him; Rodriguez’ demurrer, upon such claim, was properly disallowed. (People v. Benson, 208 Misc. 138; People v. Sutherland, 179 Misc. 1020; People v. Sloan, 175 Misc. 618.) V. The court’s discretion was properly exercised in the denial of a separate trial. (People v. Snyder, 246 N. Y. 491; People v. Fisher, 249 N. Y. 419; People v. Doran, 246 N. Y. 409; People v. Marcus, 220 App. Div. 697, 246 N. Y. 637.) VI. The rights of defendant Rodriguez were not prejudiced by any ruling of the court. VII. Witness Gardner qualified as an interpreter and the credibility and reliability of his testimony, in that capacity, was submitted to the jury for determination. VIII. The court properly denied the motion by Rodriguez to inspect the grand jury minutes with respect to indictment No. 464 in the exercise of discretion. (People v. Howell, 3 N Y 2d 672.) IX. The evidence was sufficient as a matter of law to support the verdict of guilt against Carde. (People v. Lane, 10 N Y 2d 347; People v. Vargas, 7 N Y 2d 555.) X. The court’s declination to admonish the jury of the binding effect of defendant’s statements, read upon request of the jury, was not prejudicial.
    
      Manuel Nelson Zapata, amicus curiæ.
    
    I. The court erred in failing to pass upon the competency and qualifications of the interpreters. (People v. Valencia, 27 Cal. App. 407; People v. Avila, 50 Cal. App. 228; People v. Miller, 64 Cal. App. 330; Viliborghi v. State, 45 Ariz. 275; Territory v. Kawano, 20 Hawaii 469; Birmingham Ry. Light & P. Co. v. Jung, 161 Ala. 461.) II. Defendants were denied due process of law in the deliberate or negligent concealment by the district attorney of a material statement exculpating defendant Carde. III. The court committed prejudicial error in respect to its comment upon the law of confessions. (People v. Elmore, 277 N. Y. 397; People v. Catalfano, 284 App. Div. 569; People v. Doran, 246 N. Y. 409; People v. Nolan, 2 A D 2d 144; People v. Mulvey, 1 A D 2d 541; People v. Viola, 264 App. Div. 38; People v. Rogers, 192 N. Y. 331; People v. Wilcox, 245 N. Y. 404.)
   Ftjld, J.

The defendants Rodriguez and Carde stand convicted of common-law premeditated murder for the ldlling of Jose Torres and Noreen Russell.

The bodies of the two victims who had been fatally shot were discovered in the early morning of Sunday, January 22, 1961, in the muckland area of the Town of Shelby in Orleans County and a 1955 Chevrolet automobile belonging to Torres was found nearby. It was the People’s theory that the defendants committed the murders as part of a plan to steal the car and their case rested almost entirely upon statements made by the defendants which thoroughly implicated them. There is no need to review the proof in any detail, for study of the record discloses errors which call for reversal of the judgments of conviction.

Carde was taken into custody between 8 and 8:30 p.m. on the day the bodies were discovered. A native of Puerto Rico, he was unable to speak English and an interpreter was called in to enable the police to interrogate him. In the statement which lie then gave, Carde admitted that he had been present when Rodriguez committed the murders and that, three days earlier, the latter had shown him a gun and told him that he intended to use it to “ shoot someone”. On the following day, Monday, January 23, about 4:00 p.m., Carde was brought before a justice of the peace for arraignment. A sworn information charging him with first degree murder was filed, the charge was read to him and he was advised of his rights. However, since Carde did not understand English, he was unable to comprehend the proceedings and they were adjourned for two days, until 7:30 p.m. of January 25, to enable the authorities to procure an interpreter.

On Wednesday, January 25, some hours before the postponed arraignment was held, Carde was again questioned by the police. The interpreter (Ronald Gardner), who participated in this interrogation, testified that Carde said that he had agreed to a plan, suggested by Rodriguez, to steal Torres’ auto and, if necessary to effectuate the theft, to kill Torres; that he and Rodriguez met Torres and Noreen on Saturday night at a restaurant; that, after remaining there for a short time, the four of them left together in Torres ’ car; and that, after driving for some distance, Rodriguez ordered Torres to stop the car and then proceeded to shoot both him and the girl.

This statement obviously constituted a complete confession, but, just as obviously, it should not have been received in evidence. As our recital of the chronology indicates, it was obtained from Carde after he had been arraigned before a justice of the peace. This being so, as we recently held in People v. Meyer (11 N Y 2d 162), it matters not that the defendant gave his statement before indictment. It is the interrogation, in the absence of counsel, after the criminal proceeding has been commenced, whether by grand jury indictment or by a charge placed before a magistrate following an arrest, which is forbidden. The procedure followed by the law enforcement officers not only violated Garde’s right to assistance of counsel (N. Y. Const., art. I, § 6; Code Crim. Pro., §§ 8,188, 308, 609), but also infringed upon his privilege against self incrimination. (See People v. Meyer, 11 N Y 2d 162, supra; People v. Waterman, 9 N Y 2d 561; People v. Di Biasi, 7 N Y 2d 544.)

The present case may not be distinguished from Meyer (11 N Y 2d 162, supra) on the ground that the arraignment was not concluded until after the police had finished questioning the defendant. The indisputable fact is that the criminal proceeding had been begun before the police elicited the January 25th statement from him. The proceeding may not be disregarded, or deemed not to have occurred, because Carde did not understand what was going on; it was this very lack of understanding on his part which furnished “good cause” for the adjournment (Code Crim. Pro., § 191). It follows, therefore, that the questioning to which Carde was subjected, following his January 23d arraignment, was impermissible.

The error in admitting the statement was grossly prejudicial to Garde and in and of itself calls for a reversal as to him. Since his confession fully implicated his codefendant, Rodriguez, its erroneous reception also requires reversal of the latter’s conviction in the interest of justice.” (People v. Waterman, 9 N Y 2d 561, 567, supra; People v. Noble, 9 N Y 2d 571, 575.)

This is dispositive of the appeal, but, since a number of the questions now advanced on behalf of Rodriguez — ranging from the invalidity of the indictment to the incompetence of an interpreter—•will be raised again upon the new trial, we deem it desirable to treat them briefly.

There is nothing to the contentions directed at the superseding indictment. Rodriguez and Garde were jointly indicted in February of 1961. The trial judge granted a motion made by Garde to dismiss the indictment against him on the ground that he was prejudiced by the introduction of inadmissible evidence before the grand jury and directed resubmission of the case to another grand jury. The district attorney, to assure a joint trial, thereupon resubmitted the case against Rodriguez as well as Garde and, in June of 1961, that body voted another indictment, identical to the earlier one charging both defendants jointly with the murders. Rodriguez demurred to the indictment, claiming (in effect), first, that no court order had been obtained to permit resubmission of the case against him and, second, that procuring the new indictment violated his right to a speedy trial. He also moved for an inspection of the grand jury minutes or, in the alternative, for a dismissal of the indictment on the ground that it was not founded on legal or adequate evidence. The court overruled the demurrer and denied the motion for inspection and dismissal.

Mere statement of the speedy trial point indicates its lack of merit and, with respect to the claim that the evidence before the grand jury was insufficient, we need merely say that our examination of the grand jury minutes reveals the contention to be without substance. As to the argument that a court order was necessary to justify a resubmission, we may be almost as brief. Such an order is made essential by statute only if an earlier indictment had been dismissed upon demurrer under section 323 of the code (see Code Crim. Pro., § 327) or upon motion under section 313 (see Code Crim. Pro., § 317) or following the grand jury’s refusal to indict upon a prior submission (see Code Crim. Pro., § 270). Since there had been neither a court dismissal of the indictment against Bodriguez nor an initial refusal by a grand jury to indict, the district attorney was free to resubmit the case and obtain a superseding indictment without further court direction. (See People v. Leyra, 1 N Y 2d 199, 202; People v. Rosenthal, 197 N. Y. 394, 401.)

Upon the trial, and on this appeal, Bodriguez argued that certain statements of his were improperly received in evidence, that he had been induced to confess to the killings after being confronted with a gun and other articles illegally obtained from his room. If, as he asserts, any of his statements were the product or fruit of an illegal search and seizure, they should have been excluded; the rule announced in Mapp v. Ohio (367 U. S. 643) renders inadmissible not only the items obtained, but any evidence which stems from their use. As the Supreme Court put it, “ The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. * * * If knowledge of [facts] is gained from an independent source they may be proved like any others, but the knowledge gained by the Government’s own wrong cannot be used by it in the way proposed.” (Silverthorne Lbr. Co. v. United States, 251 U. S. 385, 392; see, also, Costello v. United States, 365 U. S. 265, 278-280; Walder v. United States, 347 U. S. 62, 64-65; Nardone v. United States, 308 U. S. 338, 340-341.) In short, the exclusionary rule covers not only the evidence illegally obtained, but the product of the unlawful search as well. The underlying rationale is that government may not violate the constitutional guarantee (U. S. Const., 4th Amdt.) and “ use the fruits of such unlawful conduct to secure a conviction.” (Walder v. United States, 347 U. S. 62, 64-65, supra.) And, obviously, it matters not that these “fruits” happen to be confessions rather than some other-type of evidence. (Cf. Costello v. United States, 365 U. S. 265, 278-280, supra.)

Upon the new trial, therefore, it will be incumbent on the trial court, in connection with the defendant’s motion to suppress the challenged statements (see Code Crim. Pro., §§ 813-c, 813-d, 813-e, as added by L. 1962, ch. 954, § 1), to hold a hearing in advance of the trial and decide the issues presented, namely, whether there was an illegal search and seizure and, if there was, whether Rodriguez’ confession was induced by confrontation with the illegally obtained articles. The police officers assert that Rodriguez gave his consent to their entering his room and searching it. Rodriguez denied that he did so. Contrary to the ruling of the court below, he was free, even though then under arrest, to authorize a search of his room and, accordingly, the contradiction in testimony between the police and the defendant simply creates a question of credibility to be resolved by the trial judge. If he determines that Rodriguez actually did give his consent, not ‘ ‘ in submission to authority ’ ’ but rather as “an understanding and intentional waiver of a constitutional right” (Johnson v. United States, 333 U. S. 10, 13), then, the police were privileged to search his room without obtaining a search warrant, despite the fact that he was under arrest. If, on the other hand, the judge finds that the defendant did not in fact consent to the search, then, the articles were obtained illegally and, if Rodriguez was induced to confess as a result of being confronted with such articles, his confession may not be received in evidence. (Cf. Costello v. United States, 365 U. S. 265, 278-280, supra.)

This brings us to the final matter for discussion, the competence of an interpreter. Rodriguez spoke a broken English, and it was in English that the police interrogated him. He made three statements, the third one being taken down in writing. After it was typewritten, but before Rodriguez signed it, one Pedro Gonzalez was called in by the police to read it to him in Spanish, and the jury was told that it could take this into account in considering the weight to be given to the statement. However, and it is unnecessary to go into detail, Gonzalez’ unfamiliarity with the English language, in general, and with the meaning of a number of relatively simple words contained in Rodriguez’ statement, in particular, demonstrates a lack of ability on his part to act as an interpreter and required the trial court to rule him disqualified from testifying as such. It may not be amiss to add that, although Gonzalez will not again be called upon to testify as an interpreter, this does not necessarily mean that the statement may not be offered upon the new trial. Since questions were put to Bodriguez, and answers taken from him, in English, the People may be able to establish, to the jury’s satisfaction, that he knew enough English to understand the meaning and import of the statement in question.

The judgments of conviction should be reversed and a new trial ordered as to each defendant.

Van Voorhis, J. (concurring).

I concur for reversal in the opinion by Judge Fuld. What is said to the effect that our examination of the Grand Jury minutes reveals ” the contention to be “ without substance ’ ’ that ‘ ‘ the evidence before the Grand Jury was insufficient”, is not interpreted by me as purporting to overrule People v. Howell (3 N Y 2d 672), but simply as meaning that regardless of whether the grand jury minutes are before us the point has no substance.

Fboessel, J. (concurring in result).

I agree that there must be a new trial for the reasons stated by Judge Fuld as being dispositive of the appeal. I do not, however, agree with the dicta whereby a new rule is proposed with respect to the admissibility of an otherwise voluntary confession, which may or may not have been induced in part by the confrontation of defendant with an illegally seized article. The determination of this question is not necessary for the disposition of this appeal.

In any event, I am of the opinion that a voluntary confession is not to be excluded as a matter of law merely because it was made after defendant was confronted with an illegally seized article. No case cited in the majority opinion or otherwise called to our attention compels this rather novel result.

The general rule, which has been repeatedly adhered to in the decisions of this court, is that the voluntariness of a confession is a question of fact for the jury. The facts that a defendant was illegally arrested (Balbo v. People, 80 N. Y. 484), detained for an unlawful period of time prior to arraignment (People v. Vargas, 7 N Y 2d 555), improperly removed from a county jail for further questioning (People v. Lane, 10 N Y 2d 347), deceived into confessing (People v. Everett, 10 N Y 2d 500), or allegedly coerced or beaten into confessing (People v. Bloeth, 9 N Y 2d 211), have all been held to have been merely factors for submission to the jury for their consideration in passing upon the voluntariness of the confession. As we stated recently in the Lane case (10 N Y 2d, at p. 352), “ Admissibility of confessions is a matter of State procedure (Rogers v. Richmond [365 U. S. 534], p. 543). Nothing in Mapp v. Ohio (367 U. S. 643) is to the contrary.” Why then should we now attempt to introduce another new rule, departing from the well-settled law in this area, that merely because a defendant may have been induced to make a confession after his confrontation with illegally seized articles it must, as a matter of law,- be excluded?

In my opinion, the procedure obtaining in all other confession cases should govern, i.e., the People may offer the confession in evidence, and the defendant may challenge it, upon the ground that it was involuntarily made, by introducing evidence accordingly. The resulting conflicting question of fact is one for the jury, regardless of the nature of defendant’s claim—that he was beaten, illegally arrested or detained, or induced by a prosecutor’s promise or by illegally seized evidence.

It is true that the defendant may then be obliged to refer to the fact that there has been an illegal search and seizure but the ‘ price a defendant must pay for attempting to prove his [defense] is * * * to make himself vulnerable where the law otherwise shields him ” (Michelson v. United States, 335 U. S. 469, 479). As Mr. Justice Jackson said in the last-cited case (at pp. 478-479), “the law extends helpful but illogical options to a defendant. Experience taught a necessity that they be counterweighted with equally illogical conditions to keep the advantage from becoming an unfair and unreasonable one.” The use of illegally obtained evidence to induce a codefendant to confess, to turn State’s evidence and to testify against the remaining defendants was approved in Goldstein v. United States (316 U. S. 114). Another approved use of illegally obtained evidence is illustrated in Walder v. United States (347 U. S. 62).

I would adhere to the general rule that the voluntariness of a confession is a question of fact for the jury and not for the court on a motion to suppress.

Chief Judge Desmond and Judges Dye, Burke and Foster concur with Judge Fuld; Judge Van Voorhis concurs in a separate opinion; Judge Froessel concurs in result in a separate opinion.

Judgments of conviction reversed, etc.  