
    The People of the State of New York, Respondent, v. Robert Cefaro, Edward Josephs and Bennie Russo, Appellants.
    Argued December 4, 1967;
    decided December 29, 1967.
    
      
      F. Bosley Crowther 3rd and Anthony F. Marra for appellants.
    I. It was error to refuse to charge that Barth was an accomplice of defendants as a matter of law and hence that his testimony required corroboration, or, at the very least, to charge that the jury could find Barth was an accomplice. (Knickerbocker v. People, 43 N. Y. 177; Stover v. People, 56 N. Y. 315; People v. Galbo, 218 N. Y. 283; People v. Foley, 307 N. Y. 490; People v. Rogan, 223 App. Div. 242; People v. Guardino, 177 Misc. 402, 265 App. Div. 872, 290 N. Y. 749; People v. Kupperschmidt, 237 N. Y. 463; People v. Robertson, 12 N Y 2d 355; People v. Kress, 284 N. Y. 452; People v. Diaz, 19 N Y 2d 547.) II. The reversal of the order suppressing evidence was improper; further, the method employed to accomplish such reversal was manifestly unfair and deprived defendants of a fair trial. (People v. Rosenfeld, 11 N Y 2d 290; People v. Riley, 20 A D 2d 599; People v. McDonnell, 18 N Y 2d 509; Mapp v. Ohio, 367 U. S. 643; Jones v. United States, 362 U. S. 257; United States v. Jeffers, 342 U. S. 48; Marron v. United States, 275 U. S. 192; People v. Merz, 20 A D 2d 918; People v. McCall, 19 A D 2d 630.) III. The refusal of the Judge to charge the jury that they must find the confessions were voluntary deprived defendants of their constitutional right to trial by jury. (People v. Huntley, 15 N Y 2d 72; People v. Mials, 27 A D 2d 944.)
    
      
      Thomas J. Mackell, District Attorney (Timothy J. Flaherty of counsel), for respondent.
    I. The evidence adduced at the trial repelled the idea that Barth was an accomplice of appellants. (People v. Galbo, 218 N. Y. 283; Knickerbocker v. People, 43 N. Y. 177; Stover v. People, 56 N. Y. 315; Goldstein v. People, 82 N. Y. 231; People v. Kupperschmidt, 237 N. Y. 463.) II. The reargument of the order suppressing the camera was proper. Furthermore, appellants had not standing to bring a motion to suppress evidence. (People v. McDonnell, 18 N Y 2d 509; People v. Portelli, 15 N Y 2d 235; Jones v. United States, 362 U. S. 257.). III. It was proper for the court to refuse to charge the jury concerning the voluntariness of admissions as this issue was not raised or created in the trial and the jury would have no reasonable basis for finding the admissions involuntary. (People v. Huntley, 15 N Y 2d 72; People v. Mials, 27 A D 2d 944.)
   Van Voobhis, J.

The defendants appeal from affirmances of judgments convicting them of burglary in the third degree (two counts), grand larceny in the first degree and grand larceny in the second degree. A camera taken during one of the burglaries for which the appellants were convicted was found in the apartment of one Barth when a search for narcotics was made under a search warrant of Barth’s premises. The assistant district attorney consented to the suppression of the camera after a hearing of a motion to suppress. After the trial commenced, the assistant district attorney asked to be relieved of the consent and for denial of the motion to suppress. The People were relieved of that consent, and the motion to suppress was denied upon the ground that the defendants had no standing to challenge the validity of the seizure of the camera from Barth’s apartment since the defendants’ rights of privacy had not been violated (opn. by Shapero, J., 45 Misc 2d 990). Barth testified at the trial that the defendants brought the camera and other items to his apartment.

The Appellate Division affirmed without opinion (28 A D 2d 694).

The appellants argue that it was error to refuse to charge that Barth was an accomplice as a matter of law and that his testimony therefore required corroboration under section 399 of the Code of Criminal Procedure or, at least, to charge that the jury could find Barth to have been an accomplice; that it was improper to revoke the order suppressing evidence, and that revoking it during the trial was unfair and deprived the defendants of a fair trial; that the refusal to charge that the jury must find the confessions were voluntary deprived the defendants of their constitutional right to trial by jury.

On Saturday evening, February 29,1964, $700 in cash, jewelry and a Polaroid J66 Land Camera were taken in a burglary from the premises of William Mendolia, 61-12 69th Lane, Middle Village, Queens. Upon the same evening binoculars, two television sets and liquor were abstracted from the second floor apartment at the same address occupied by Thomas Simonetti.

On the following Monday, March 2, 1964, a detective entered an apartment at 1508 DeKalb Avenue, Brooklyn, occupied by Barth and family, pursuant to a search warrant directing him to search that apartment for narcotics and narcotics instruments. After finding narcotics instruments in the kitchen they continued searching the apartment, and in the bureau drawer belonging to one of Barth’s three children they found the Polaroid camera which had been stolen from Mendolia’s home. This camera proved to have been sold by defendant Russo to Barth for $32.

Barth was a heroin addict. He had known defendant Russo previously and testified to having seen him together with defendants Josephs, Cefaro and a former codefendant named Kherkoven at between 11:00 p.m. and midnight on the night of the burglary when the four of them arrived at his apartment with the various articles that had been stolen from the premises of Mendolia and Simonetti. Detective Thomas Curran testified that he investigated the Mendolia and Simonetti burglaries, observed five panes of glass in the rear of the house broken and a casement window forced, and that he obtained a hat belonging to Russo which was found at the Mendolia residence. Russo admitted that it was his hat and that he was wearing it on February 29, 1964. Russo admitted that on that date he was with Kherkoven, Josephs and Cefaro and that they went to a place in Queens where he and Cefaro entered a house and committed a burglary.

On questioning by Curran, the appellant Josephs stated that on February 29, 1964 he was in a car owned by Kherkoven, that he, Kherkoven, Russo and Cefaro had gone to a place in Queens, that Josephs and Kherkoven stayed in the car while Russo and Cefaro left the car, went into the house and returned a short time later with certain articles. Josephs said that he and Kherkoven were “ lookouts ”.

Detective Curran questioned Cefaro who said that he had gone to Queens with Russo, Josephs and Kherkoven on the date in question between the hours of 7:30 and ll.:40 p.m. He denied participation in a burglary and denied going to Barth’s house.

There was no evidence that these confessions or admissions were involuntary and no requests or exceptions to the court’s failure to charge the jury concerning the voluntariness of these admissions were made on behalf of appellants Cefaro or Russo. The only request to charge the jury as to voluntariness was made on behalf of appellant Josephs and this was declined by the court.

None of the defendants took the stand.

No point is made that defendants were not proved guilty beyond a reasonable doubt, at least unless Barth was an accomplice and required corroboration under section 399 of the Code of Criminal Procedure. The argument is that Barth could have been convicted on the burglary and grand larceny counts by reason of his having been found in recent and exclusive possession of the stolen goods (People v. Foley, 307 N. Y. 490; People v. Roman, 12 N Y 2d 220). The rule requires also that the possession be unexplained, however, and Barth could hardly have been convicted of other crimes than being a receiver of stolen property on his testimony and the statements of Cefaro, Josephs, Russo and Kherkoven which were all to the effect that he had nothing to do with the burglary and larceny but merely bought the camera knowing it to have been stolen, and allowed the others to bring what they had stolen into his apartment. He was not at the scene of the burglaries and knew nothing about them beforehand. It was not error to have declined to charge the jury that they could have found him an accomplice in the burglary and larceny or that he was an accomplice as matter of law. The crimes of larceny and receiving 'are mutually exclusive (People v. Kupperschmidt, 237 N. Y. 463, 465).

The principal contention of appellants is that the camera should have remained suppressed for the reason that it was not specified in the search warrant of Barth’s premises. The camera could not, of course, have been utilized as evidence against Barth on a charge of receiving stolen property. That is a different matter, however, from using it as evidence in support of the burglary and larceny charges against Cefaro, Josephs and Russo. It was not found in their apartments, and they were not persons aggrieved by the search and seizure in somebody else’s premises. There was no evidence here paralleling that in People v. McDonnell (18 N Y 2d 509) where a telephone wiretap was installed in premises that were actually being maintained and used for the defendant’s benefit. The recent decision in Katz v. United States (389 U. S. 347) does not purport to overrule Goldstein v. United States (316 U. S. 114), Jones v. United States (362 U. S. 257, 261), Wong Sun v. United States (371 U. S. 471) or the other decisions cited in the opinion herein by Justice Shapiro (at 45 Misc 2d 990) holding that a stranger has no standing to assert that evidence in another’s house or premises has been seized unlawfully against the owner or tenant of the premises. If Cefaro, Josephs or Russo had been present in Barth’s apartment when the search was made and the camera had been taken from the possession of one of them, he might well have had standing to apply to have its use suppressed in support of criminal charges against him.

The judgments appealed from should be affirmed.

Breitel, J. (dissenting).

I am constrained to dissent on two separate grounds, each of which requires a reversal of the convictions and the granting of a new trial.

The first is that, without any authority in the statute for such procedure, in the middle of the trial, the prosecutor was permitted to interrupt for the purpose of making a motion to vacate a pretrial order of suppression. While the trial was suspended the order was vacated and the suppressed evidence was thereafter received in evidence. Such procedure is without authority in the applicable statute; moreover, it defeats its purpose (see Code Crim. Pro., § 813-d).

The second ground requiring reversal is that the court refused to charge the jury that it must determine as a question of fact whether the witness Barth was an accomplice and, if he was, whether his testimony was corroborated (see Code Crim. Pro., § 399). While it is true that a thief and receiver are not accomplices of each other, on the evidence in this case the jury could have concluded that Barth was an accomplice in the larceny. Indeed, there is reason to believe that the prosecutor’s consent to the pretrial motion to suppress was based upon his notion that the witness Barth was an accomplice and that, therefore, defendants had standing to make the motion (People v. Cefaro, 45 Misc 2d 990, 991, where the suppression court noted that the prosecutor had mistakenly relied on defendants’ standing to make the motion).

Accordingly, I dissent and vote to reverse the convictions and to order a new trial.

Chief Judge Fuld and Judges Burke, Scileppi, Bergan and Keating concur with Judge Van Voorhis; Judge Breitel dissents and votes to reverse and order a new trial in a separate opinion.

Judgments affirmed.  