
    The People of the State of New York, Respondent, v. Alan McNeil, Charles Spain and Henry Eugene McNeil, Appellants.
    Argued March 6, 1969;
    decided April 23, 1969.
    
      Jonathan L. Rosner and Seth Rosner for Charles Spain, appellant.
    I. Confessions and other evidence supporting the judgment were obtained in violation of appellant’s constitutional rights. (Mapp v. Ohio, 367 U. S. 643; Wong Sun v. United States, 371 U. S. 471; Ker v. California, 374 U. S. 23; Jones v. United States, 357 U. S. 493; People v. Coffey, 12 N Y 2d 443; Brinegar v. United States, 338 U. S. 160; People v. Santiago, 13 N Y 2d 326; People v. Goldfarb, 34 Misc 2d 866; Rogers v. Richmond, 365 U. S. 534.) II. Where a prosecution is predicated entirely on confessions obtained from four alleged accomplices to a murder, it is prejudicial error and a deprivation of due process of law to try the four accused together, or to fail to eliminate those portions of the confessions wherein a codefendant is implicated. (Bruton v. United States, 391 U. S. 123; Delli Paoli v. United States, 352 U. S. 232; Roberts v. Russell, 392 U. S. 293; People v. Boone, 22 N Y 2d 476; People v. McLucas, 15 N Y 2d 167; People v. Arthur, 22 N Y 2d 325.) III. Statements in summation by the prosecutor deprived appellant of a fair trial. (People v. Wright, 17 A D 2d 151; People v. Lovello, 1 N Y 2d 436; Griffin v. California, 380 U. S. 609; People v. Adams, 21 N Y 2d 397.)
    
      Richard T. Farrell for Henry Eugene McNeil, appellant.
    I. The use at the joint trial herein of certain confessions by defendants Moore, Alan McNeil and Spain, implicating Henry Eugene McNeil, violated his right of cross-examination guaranteed by the Sixth and Fourteenth Amendments. II. The grounds urged for reversal were properly presented to the trial court and require a new trial even if the court is persuaded of Henry Eugene McNeil’s guilt. III. The prosecutor’s repeated use in his summation of the other defendants’ statements to support the People’s case against Henry Eugene McNeil denied him a fair trial. IV. The prosecutor, in his summation, exceeded the bounds of propriety by making inflammatory statements, improper suggestions and by indulging in impermissible histrionics, and, therefore, the trial court erred in denying the motion for a mistrial on these grounds.
    
      Anthony G. DiFalco for Alan McNeil, appellant.
    I. The judgment of conviction must be reversed because the confessions of each defendant were used against defendant Alan McNeil in violation of his rights to due process. II. The prosecutor’s summation deprived defendant Alan McNeil of a fair trial. III. The court’s charge deprived defendant of a fair trial. IV. The confession of defendant was coerced.
    
      Eugene Gold, District Attorney (William I. Siegel of counsel), for respondent.
    I. Appellants’ guilt was established beyond a reasonable doubt. Their voluntary confessions were properly received in evidence. (People v. Leonti, 18 N Y 2d 384; People v. Boone, 22 N Y 2d 476; People v. Baker, 23 N Y 2d 307; Brinegar v. United States, 338 U. S. 160; People v. Lane, 10 N Y 2d 347; People v. Coffey, 12 N Y 2d 443; Ker v. California, 
      374 U. S. 23; Mapp v. Ohio, 367 U. S. 643; Wong Sun v. United States, 371 U. S. 471; Jones v. United States, 357 U. S. 493.) II. Appellant was accorded a fair trial. (Opper v. United States, 348 U. S. 84; People v. Lobel, 298 N. Y. 243; People v. Adams, 21 N Y 2d 397.)
   Scileppi, J.

Defendants and another were indicted and tried for the murder of Detective Donald Rolker of the New York City Police Department. The jury convicted these defendants of felony murder but were unable to reach a verdict as to the fourth codefendant. The Appellate Division, Second Department, affirmed the judgments of conviction and defendants appeal pursuant to permission granted by a Judge of this court.

Shortly after they were apprehended, each of the defendants voluntarily made a detailed confession implicating himself as well as each of the other defendants in the crime charged. At the trial, these confessions were received in evidence with clear, forceful limiting instructions that each confession should be considered only against the declarant.

In Bruton v. United States (391 U. S. 123) and Roberts v. Russell (392 U. S. 293), cases involving joint trials in which only one of the defendants confessed, implicating the other, the Supreme Court held that despite limiting instructions it was error to receive the confession in evidence because of the substantial risk that the jury looked to the extrajudicial statement in determining the nonconfessor’s guilt, thus violating his right of cross-examination secured by the confrontation clause of the Sixth Amendment.

The only substantial question raised on this appeal is whether the rationale of Bruton is applicable where each of the defendants has himself made a full and voluntary confession which is almost identical to the confessions of his codefendants.

We agree with the several courts both in this State and in the Federal jurisdiction which have held that in a case such as this, the logic of Bruton is inapplicable (see United States ex rel. Catanzaro v. Mancusi, 404 F. 2d 296; see, also, People v. Dusablon and Samperi, N. Y. L. J., Feb. 21, 1969, p. 17, col. 4; People ex rel. Bartlam v. McMann, N. Y. L. J., Nov. 22, 1968, p. 16, col. 1). Thus in the Gatansaro case, where the confessions of two defendants, each implicating the other, were introduced in a joint trial, the court dismissed a Federal writ of habeas corpus holding (404 F. 2d 296, at p. 300):

“ The reasoning of Hill [United States ex rel. Hill v. Deegan, 268 F. Supp. 580] and Bruton is not persuasive here. Both of those cases involved a defendant who did not confess and who was tried along with a codefendant who did. In our case Catanzaro himself confessed and his confession interlocks with and supports the confession of McChesney.
“Where the jury has heard not only a codefendant’s confession but the defendant’s own confession no such devastating ’ risk attends the lack of confrontation as was thought to be involved in Bruton. ’ ’

We have considered defendants’ other contentions and find them to be without merit.

Accordingly, the judgments appealed from should be affirmed.

Chief Judge Fuld (dissenting).

The appellants before us made full confessions and, if each had been tried separately and found guilty, I would readily agree that the convictions should be affirmed. However, upon the joint trial which was held, each of them was inculpated not only by his own statements but also by those of his codefendants and, under established principles, they should not have been received against him. It is easy enough to say, since each of them had fully admitted his guilt, that new trials are unnecessary but it seems to me — if we are to be faithful to the rules laid down by the Supreme Court — that we are required to reverse the judgments and direct new and separate trials. (See Roberts v. Russell, 392 U. S. 293; Bruton v. United States, 391 H. S. 123.)

Even before the decisions in Bruton and Roberts, our court held that, in a case in which a defendant was implicated by an out-of-court statement of a codefendant tried jointly with him, his conviction could not stand. (See People v. La Belle, 18 N Y 2d 405; People v. Burrelle, 21 N Y 2d 265; People v. Adams, 21 N Y 2d 397; see, also, People v. Baker, 23 N Y 2d 307; People v. Boone, 22 N Y 2d 476; People v. Jackson, 22 N Y 2d 446.) “It is a fundamental principle of evidence, embodied in the confrontation clause of the Sixth Amendment,” we declared in the Jackson case, “ that statements made outside the courtroom, without the opportunity for cross-examination, are admissible only against the person who made them. [Cases cited.] Consequently, when two or more defendants are tried jointly, a confession given by one defendant which inculpates a codefendant may not be received in evidence unless 1 all parts of the extrajudicial statements implicating [the latter] can be and are effectively deleted ’. (People v. La Belle, 18 N Y 2d 405, 410, n. * * *.) Where such effective redaction is not possible, where a defendant’s admission of guilt is ‘-so interrelated in the involvement of an accomplice as to render it impossible for practical purposes to separate them ’ (People v. Pollock, 21 N Y 2d 206, 214, supra), a joint trial must be eschewed and separate trials directed ” (22 N Y 2d, at p. 450).

The majority, not disputing the rule, merely asserts that when (as in this case) each appellant had himself..- confessed, his codefendants’ .statements did not contribute to the verdict against him and the error committed was rendered nonprejudicial. Although such arguments have found favor with some courts (see, e.g., People ex rel. Bartlam v. McMann, N. Y. L. J., Nov. 22, 1968, p. 16, col. 1; United States ex rel. Catanzaro v. Mancusi, 404 F. 2d 296), we have consistently rejected them and, I suggest, with good reason. (See People v. Baker, 23 N Y 2d 307, supra; People v. Jackson, 22 N Y 2d 446, supra.) The Constitution requires, the Supreme Court has made clear, that, when two or. more defendants are tried jointly, a confession made by one of them, inculpating a codefendant, may not be received in evidence. And, as that court declared in Roberts v. Russell (392 U. S. 293, 294, supra), where the rule is not observed and the defendant’s “ right of cross-examination secured by the Confrontation Clause of the Sixth Amendment ” is-violated, the error goes “ ‘ to the basis of fair hearing and trial because the procedural apparatus never assured the [appellant] a fair determination ’ of his guilt or innocence.”

However, as I have noted, it is urged that that constitutional violation may be overlooked in this case and the error stamped as harmless. Our court has not hesitated to hold an error harmless when the record demonstrates that the claimed defect could not have prejudiced the defendant, influenced the jury or tainted its verdict (see, e.g., People v. Kingston, 8 N Y 2d 384, 387) but we have not hitherto departed from the fundamental principle that even a guilty person is entitled to a fair trial. (See, e.g., People v. Donovan, 13 N Y 2d 148, 153; People v. Rosenfeld, 11 N Y 2d 290, 300; People v. Jackson, 7 N Y 2d 142, 145.) In Donovan (13 N Y 2d 148, supra), for example, the defendant had made two confessions, one oral and one written, and it appeared that one of them—that which was in writing—had been illegally obtained in violation of the defendant’s right to counsel. Despite the fact that the oral confession, as well as other proof, made out a “ strong ” case against the defendant, the court, nevertheless, reversed the conviction with these words (13 N Y 2d, at pp. 153-154):

‘ ‘ That # * * does not justify an affirmance * * * for, not knowing what credit and weight the jury gave to the written confession, we cannot say whether the jury would have returned a verdict of guilt if that improperly received statement had been excluded. ‘ It is for jurors, ’ we wrote in People v. Mleczko (298 N. Y. 153, 163), not judges of an appellate court such as ours, to decide the issue of guilt ’ solely on the basis of evidence properly before them. [Cases cited.] It cannot be overemphasized that our legal system is concerned as much with the integrity of the judicial process as with the issue of guilt or innocence. The constitutional and statutory safeguards provided for one accused of crime are to be applied in all cases. The worst criminal, the most culpable individual, is as much entitled to the benefit of a rule of law as the most blameless member of society.” (Emphasis supplied.)

The test whether error is harmless, it has been aptly stated, is not * * * whether other proof of guilt is overwhelming” but whether we are able “to say, beyond a reasonable doubt, * * * that [the error] did not contribute to the finding of guilty.” (People v. Smith, 38 Ill. 2d 13,17; see Chapman v. California, 386 U. S. 18, 23-24.) In making this determination, we should keep in mind that it is the jury which must pass upon issues of fact and, ultimately, the question of guilt and that appellate court judges can rarely determine what may have persuaded jurors to reach their verdict. Even when a defendant has confessed, he is not automatically to be considered guilty; he is still entitled to challenge both the truth of his own confession and its voluntariness. Although each of the appellants clearly implicated himself, there still remained a substantial question for the jury concerning the voluntariness of his confession, and this determination may well have been influenced by thp improperly admitted statements of his codefendants. It was reasoning such as this which led us to decide in People v. Baker (23 N Y 2d 307, 318, supra) that [t]hese errors compel a new trial for the three confessing defendants as well as for the nonconfessing defendants (People v. Burrelle [21 N Y 2d 265], supra). It might well have been the existence of the other confessions which led the jury to conclude that each of the confessions was both truthful and voluntary and the defendants’ guilt proven.” In the Jackson case, too, we reversed the convictions on the ground that the confession of one defendant implicated his codefendant, even though the latter had also confessed (22 N Y 2d 446, supra).

In sum, then, since the use of their codefendants’ out-of-court statements which implicated them violated the constitutional rights of the appellants (see Roberts v. Russell, 392 U. S. 293, supra; Bruton v. United States, 391 U. S. 123, supra) and since that constitutional error may not be said to be “harmless beyond a reasonable doubt” (Chapman v. California, 386 U. S. 18, 24, supra), the judgment should be reversed and new and separate trials ordered.

Judges Bergan, Breitel and Jasew concur with Judge Scileppi ; Chief Judge Fuld dissents and votes to reverse in a separate opinion in which Judges Burke and Keatikg concur.

Judgment affirmed.  