
    The People of the State of New York, Respondent, v. Edwin H. Vella, Appellant.
    Argued December 5, 1967;
    decided December 29, 1967.
    
      
      Stuart J. Justice for appellant.
    I. The actions by the State Police in obtaining a statement from this defendant under the circumstances of this case denied defendant effective assistance of counsel and constituted fundamental unfairness. Therefore all statements should have been suppressed. (People v. Donovan, 13 N Y 2d 148; People v. Friedlander, 16 N Y 2d 248; People v. Meyer, 11 N Y 2d 162; Massiah v. United States, 377 U. S. 201; People v. Sanchez, 15 N Y 2d 387; People v. LeBrantz, 272 App. Div. 730; People v. Spivak, 237 N. Y. 460; People v. Gunner, 15 N Y 2d 226; People v. Bodie, 16 N Y 2d 275; People v. Lacy, 26 A D 2d 982; People v. Ressler, 17 N Y 2d 174; People v. Failla, 14 N Y 2d 178; People v. Robinson, 13 N Y 2d 296.) II. The search and seizure was illegal as it was not made pursuant to a lawful arrest or incidental thereto, or with a lawfully issued warrant. (People v. Malinsky, 15 N Y 2d 86; Mapp v. Ohio, 367 U. S. 643; People v. Taggart, 20 N Y 2d 335; People v. Rivera, 14 N Y 2d 441; People v. Loria, 10 N Y 2d 368; People v. McCarthy, 14 N Y 2d 206.) III. The court’s charge was insufficient to afford defendant a jury trial of the issue of voluntariness of the confession. (Jackson v. Denno, 378 U. S. 368; People v. Huntley, 15 N Y 2d 72.)
    
      George J. Aspland, District Attorney (Joseph F. O'Neill of counsel), for respondent.
    I. The inculpatory statement given by appellant was properly admitted into evidence. He was not deprived of any constitutional right. (People v. Spivak, 237 N. Y. 460; People v. Bodie, 16 N Y 2d 275.) II. Appellant did not urge in the court below that the search and seizure were illegal. Hence, he should not be heard to raise it now. In any case there was probable cause for arresting appellant. (Brinegar v. United States, 338 U. S. 160; People v. Peters, 18 N Y 2d 238.) III. The court’s charge on voluntariness was sufficient. Moreover, this point was not raised in the Appellate Division.
   Chief Judge Fuld.

The defendant was arraigned in the New York City Criminal Court upon a charge of criminally receiving stolen property. Counsel was assigned to represent him, and the trial was adjourned to a future date. The defendant, released upon his own recognizance, was immediately arrested, as he was about to leave the courtroom, by New York State Police who were present during the arraignment proceedings. They turned him over to other members of the State Police force in Suffolk County. Shortly thereafter, these officers questioned him in the absence of, and without notice to, his attorney concerning a burglary of a private home in that county and the theft therefrom of property which was also involved in the New York County receiving charge. Such interrogation, despite the defendant’s “ waiver.” of his right to counsel, was impermissible. Consequently, the confession obtained from him should not have been received in evidence. (See, e.g., People v. Donovan, 13 N Y 2d 148, 151-153; People v. Waterman, 9 N.Y 2d 561, 565-566; People v. Di Biasi, 7 N Y 2d 544, 549-551; Escobedo v. Illinois, 378 U. S. 478, 484-488, 490-492; Massiah v. United States, 377 U. S. 201, 204-206.)

Reversible error was also committed when the trial judge refused the defendant’s request to submit to the jurors the question of the voluntariness of the confession after he had, in effect, instructed. them that they need only consider and decide whether the confession was true or false. (See, e.g., People v. Rensing, 20 N Y 2d 936; People v. Huntley, 15 N Y 2d 72, 77-78; People v. Barbato, 254 N. Y. 170, 172-174; Rogers v. Richmond, 365 U. S. 534, 545-546.)

The conviction must be reversed and a new trial ordered.

Keating, J. (concurring).

I concur in the result reached by the majority, because I believe that the charge on voluntariness was improper; I cannot agree with the court’s conclusion that the statements made with regard to the theft of the property in Suffolk County should be excluded merely because counsel had been assigned to represent him on the charge of receiving stolen property in New York City.

The crimes of receiving stolen property and larceny—and burglary—are separate, distinct offenses ” (People v. Kupperschmidt, 237 N. Y. 463, 465; see, also, People v. Cefaro, 21 N Y 2d 252, decided herewith). And the mere fact that counsel may have been appointed to represent the accused in one county on a charge of receiving stolen property should not prevent questioning by law' enforcement officials in another county with regard to the theft. As long as the admissions are used only in the prosecution of the latter crime, defendant’s constitutional rights are not violated. (Cf. People v. Stanley, 15 N Y 2d 30, 32.)

The majority, in effect, holds that, once counsel is appointed to represent an accused for a particular crime or if a criminal is sufficiently well off to have permanent retained counsel, the police may not question him with regard to any crime. This holding is unwarranted as it is unprecedented. I cannot agree.

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

Judgment reversed, etc.  