
    The People of the State of New York, Appellant-Respondent, v. Clarence J. Ressler, Jr., Respondent-Appellant.
    Argued January 19, 1966;
    decided March 31, 1966.
    
      
      M. Andrew Dwyer, Jr., District Attorney (Donald J. Shanley of counsel), for appellant-respondent.
    I. The Appellate Division erred in reversing the judgment of conviction since the grounds upon which said reversal was based had not been preserved for review by objection or exception in the trial court. (People v. Sanchez, 15 N Y 2d 387; People v. Donovan, 13 N Y 2d 148; People v. Failla, 14 N Y 2d 178; People v. Gunner, 15 N Y 2d 226; Jackson v. Denno, 378 U. S. 368; People v. Huson, 187 N. Y. 97; People v. Sherlock, 166 N. Y. 180; People v. Steinmetz, 240 N. Y. 411; People v. Cohen, 5 N Y 2d 282; People v. Friola, 11 N Y 2d 157; People v. Rossi, 11 N Y 2d 379.) II. Inasmuch as Sacks was not an attorney, the alleged denial of access was at most an element bearing on the voluntariness of the confession. (People v. Hocking, 15 N Y 2d 973; People v. Huntley, 15 N Y 2d 72.) III. Even if Sacks be regarded as an attorney, still there was no denial of access herein so as to require a reversal of the judgment of conviction. IV. The indictment should not be dismissed. (People v. Howell, 3 A D 2d 153, 3 N Y 2d 672; People v. Glen, 173 N. Y. 395; People v. Eckert, 2 N Y 2d 126; People v. Melski, 10 N Y 2d 78; People v. McCormack, 278 App. Div. 191; People v. Caminito, 3 N Y 2d 596; People v. Peetz, 7 N Y 2d 147.) V. The retrial of defendant would not constitute double jeopardy. (People v. Ercole, 4 N Y 2d 617.) VI. It cannot be said that as a matter of law the People failed to establish the guilt of defendant. (People v. Boas, 92 N. Y. 560 ; People v. Jelke, 1 N Y 2d 321.) VII. The issue of whether the death weapon can be admitted in evidence irpon the retrial of this action is not before this court. (People v. Failla, 14 N Y 2d 178.) VIII. The issue of whether or not the statement of defendant was exculpatory was for the jury to determine.
    
      Henry Mark Holzer, Frank A. Tate, Jr., Franklin P. Gavin, Phyllis Tate Holzer and Albert L. Richter for respondent-appellant.
    I. Under Escobedo v. Illinois (378 U. S. 478), and its counterpart New York cases, Bessler was denied the assistance of counsel who had been made available for him, and the flagrant deception by the police of such counsel in his efforts to represent Bessler constituted fundamental unfairness. Therefore, all statements thereafter made by Bessler were properly excluded by the Appellate Division. (People v. Di Biasi, 7 N Y 2d 544; Spano v. New York, 360 U. S. 314; People v. Waterman, 9 N Y 2d 561; People v. Noble, 9 N Y 2d 571; People v. Meyer, 11 N Y 2d 162; People v. Donovan, 13 N Y 2d 148; Crooker v. California, 357 U. S. 433; People v. Failla, 14 N Y 2d 178; People v. Stanley, 15 N Y 2d 30; People v. Gunner, 15 N Y 2d 226; People v. Sanchez, 15 N Y 2d 387; Gideon v. Wainwright, 372 U. S. 335; Malloy v. Hogan, 378 U. S. 1.) II. As soon as Bessler was cast in the role of an accused, and his lawyer had called on the telephone, the police had the duty to inform him of his absolute constitutional rights to remain silent and to obtain counsel. Since the police did neither, all statements thereafter made by Bessler were properly excluded by the Appellate Division. (Crooker v. California, 357 U. S. 433; Massiah v. United States, 377 U. S. 201; Carnley v. Cochran, 369 U. S. 506; Uveges v. Pennsylvania, 335 U. S. 437.) III. Contrary to the People’s assertion, the denial of counsel grounds upon'which the Appellate Division based its reversal was properly preserved for review. (People v. Huson, 187 N. Y. 97; People v. Sherlock, 166 N. Y. 180; People v. Steinmetz, 240 N. Y. 411; People v. Cohen, 5 N Y 2d 282; People v. Friola, 11 N Y 2d 157; People v. Rossi, 11 N Y 2d 379; People v. Boddie, 22 A D 2d 926; People v. Coffey, 11 N Y 2d 142; People v. Bradner, 107 N. Y. 1; People v. McLaughlin, 291 N. Y. 480; People v. McLucas, 15 N Y 2d 167; Cancemi v. People, 18 N. Y. 128; People v. Miles, 289 N. Y. 360; Henry v. Mississippi, 379 U. S. 443; Malloy v. Hogan, 378 U. S. 1; People v. Laverne, 14 N Y 2d 304.) IV. If the Appellate Division is affirmed and Kessler’s confession remains inadmissible, instead of Kessler being tried again, the indictment should be dismissed. (People v. Peetz, 7 N Y 2d 147; People v. Howell, 3 N Y 2d 672; People v. Eckert, 2 N Y 2d 126; People v. Daghita, 299 N. Y. 194; People v. Melski, 10 N Y 2d 78; People v. McCormack, 278 App. Div. 191; Silverthorne Lbr. Co. v. United States, 251 U. S. 385; Wong Sun v. United States, 371 U. S. 471; People v. Rodriguez, 11 N Y 2d 279; People v. Caminito, 3 N Y 2d 596, 357 U. S. 905.) V. A trial pursuant to the original indictment would subject Kessler to double jeopardy (and cruel and unusual punishment). (Gideon v. Wainwright, 372 U. S. 335; Robinson v. California, 370 U. S. 660; United States ex rel. Hetenyi v. Wilkins, 348 F. 2d 844; Brock v. North Carolina, 344 U. S. 424; Bartkus v. Illinois, 359 U. S. 121; Dreyer v. Illinois, 187 U. S. 71.) VI. As a matter of law, the People failed to prove defendant guilty of first degree manslaughter. (People v. D’Andrea, 26 Misc 2d 95; People v. Peetz, 7 N Y 2d 147; People v. Lewis, 282 App. Div. 267; People v. Nicoll, 3 A D 2d 64; People v. Heineman, 211 N. Y. 475; People v. Walker, 296 N. Y. 740; People v. Weiner, 211 N. Y. 469; People v. Patterson, 21 A D 2d 356; People v. Ledwon, 153 N. Y. 10.) VII. If defendant’s confession remains inadmissible and a new trial is ordered instead of a dismissal of the indictment, the gun, all evidence by Mrs. Kessler concerning her conversations with her husband before she left for Slick’s apartment, and all occurrences with her husband after the shot was fired must be excluded from that new trial. VIII. Even if the Appellate Division is reversed and Kessler’s confession is admitted, the indictment should still be dismissed. (People v. Nitzberg, 289 N. Y. 523.) IX. Even if the Appellate Division is reversed and Kessler’s confession is admitted, but this court does not dismiss the indictment, Ressler is still entitled to a new trial. If the so-called ‘ ‘ confession ’ ’ was really an exculpatory statement, the trial court’s repeated references to it as a “confession” constituted reversible error. (People v. Bretagna, 298 N. Y. 323; People v. Harris, 306 N. Y. 345; People v. Kingston, 8 N Y 2d 384.) X. When the District Attorney asked one of the defense witnesses a question about Ressler’s prior criminal activities, reversible error-was committed. (People v. Jackson, 10 N Y 2d 510.) XI. When the District Attorney, in his summation, characterized one of the four defense witnesses as having told a “ contemptible ” story, reversible error was committed. (People v. Lombard, 4 A D 2d 666; People v. Fielding, 158 N. Y. 542.) XII. Since Ressler’s written statement was in the form of an affidavit and sworn to, its use violated his Fifth and Fourteenth Amendment rights. (People v. Foley, 8 N Y 2d 153; People v. Shenandoah, 9 N Y 2d 75; People v. Oakley, 9 N Y 2d 656; People v. Warner, 9 N Y 2d 670; People v. Randall, 9 N Y 2d 413.) XIII. Considered as a whole, the charge to the jury was confusing, contradictory, often incomprehensible, and therefore constituted reversible error. XIV. The trial court improperly charged the jury on the issue of self-defense. (People v. Giammatto, 273 App. Div. 1023; People v. Coleman, 7 A D 2d 155; People v. McCutcheon, 14 A D 2d 482.)
   Van Voorhis, J.

The judgment of conviction was properly reversed and a new trial granted by the Appellate Division on account of the admission in evidence of the statement by defendant taken at the police station after his law firm had contacted the police (24 A D 2d 7). The misleading answer given by the Chief of Detectives that there was nothing wrong and no need for a lawyer threw defense counsel off guard, and the consequence is the same as though the police had been instructed by an attorney for defendant that he was not to be interrogated in the absence of counsel (People v. Gunner, 15 N Y 2d 226; People v. Donovan, 13 N Y 2d 148; People v. Sanchez, 15 N Y 2d 387).

The defendant has appealed as well as the People, and some further comments are in order in respect of points raised by his counsel on appeal to serve as guidelines for the new trial.

Since the statement of defendant taken at the police station will have to be excluded upon the new trial, so, also, will the gun which was dredged from the river at the place where defendant in the statement said that he threw it (People v. Rodriguez, N Y 2d 279; Silverthorne Lbr. Co. v. United States, 251 U. S. 385, 392) unless its retrieval from the river can be traced to some other clue or lead than that which was furnished by the statement. Upon the other hand, the conversation between defendant and his wife in the presence of Maxwell Slick, before he was slain, is admissible over the objection that it was a privileged communication (People v. Daghita, 299 N. Y. 194) inasmuch as privilege does not attach while a third person is present (People v. Melski, 10 N Y 2d 78; People v. McCormack, 278 App. Div. 191, affd. 303 N. Y. 782).

Inasmuch as defendant was tried on an indictment for murder in the second degree but was convicted of first degree manslaughter, we have concluded that he cannot again be tried on a more serious charge than manslaughter in the first degree based on the same incident. In 1881 the Legislature enacted sections 464 and 544 of the Code of Criminal Procedure, which provide that granting a new trial places the parties in the same position as if no trial had been had ” and that the new trial “ shall proceed in all respects as if no trial had been had.” On the basis of these statutes it has heretofore been held by us that, if a defendant obtained a new trial on appeal from a conviction of a lesser degree of a crime stated in the indictment, he could still be convicted of the greater degree (People v. Palmer, 109 N. Y. 413; People v. McGrath, 202 N. Y. 445; People v. Ercole, 4 N Y 2d 617; Matter of Fiorillo v. Farrell, 16 N Y 2d 678) although it has been the law of New York that if the conviction on the lesser charge was left standing, either because no appeal was taken or the appeal was not successful, the reprosecution for the greater charge would be impermissible. In that instance the jury’s silence on the greater charge was held to be “ equivalent to a verdict of not guilty ’ ’ of that charge (People v. McCarthy, 110 N. Y. 309, 314; Penal Law, § 32).

The Ercole and parallel decisions based on sections 464 and 544 of the Code of Criminal Procedure, directing that under the circumstances here presented the new trial shall proceed as if no previous trial had been had, became and remained the law of New York for so long as they were not held by the United States Supreme Court to have been overridden by the Fourteenth Amendment to the Constitution of the United States. In Green v. United States (355 U. S. 184) the United States Supreme Court laid down a different rule for the Federal courts, holding that, under circumstances similar to those here presented, a second trial of an accused for first degree murder, after a previous jury had found him guilty of second degree murder only, placed him in jeopardy twice for the same offense in violation of the Fifth Amendment. For so long as prevention of double jeopardy was not held to be mandated on the States by the Fourteenth Amendment, our State rule could coexist with the Federal rule just as People v. Defore (242 N. Y. 13, cert. den. 270 U. S. 657) could coexist with Weeks v. United States (232 U. S. 383) until Wolf v. Colorado (338 U. S. 25) was overruled by Mapp v. Ohio (367 U. S. 643) and Ker v. California (374 U. S. 23). After that we became obliged to follow the Federal rule on the theory that the Fourth Amendment had been mandated on the States.

Since our last decision upon this subject, in Matter of Fiorillo v. Farrell, supra), the United States Court of Appeals in the Second Circuit has decided in United States ex rel. Hetenyi v. Wilkins (348 F. 2d 844) that the due process clause of the Fourteenth Amendment imposes the rule of Green v. United States (supra) upon the States, and that, in effect, to reprosecute this defendant for second degree murder would place him in double jeopardy for the reason that on the former trial he was prosecuted for that crime but was found guilty only of the included crime of manslaughter in the first degree. The Supreme Court of the United States denied certiorari on application by the Warden (Mancusi v. Hetenyi, 383 U. S. 913). The holding is not necessarily that the entire Fifth Amendment is mandated on the States, but does extend to a determination that the situation here presented falls within the guarantee against double jeopardy which was held to be a fundamental right within the doctrine of selective incorporation, whereby certain guarantees of the Bill of Bights are absorbed by the due process clause of the Fourteenth Amendment and are thus made applicable to the States.

Denial of certiorari by the Supreme Court in the Hetenyi case does not of itself indicate approval of that decision, but we are satisfied that decisions such as Malloy v. Hogan (378 U. S. 1), Murphy v. Waterfront Comm. (378 U. S. 52) and Pointer v. Texas (380 U. S. 400), as well as the reasoning of the Second Circuit in Hetenyi, go far toward demonstrating that the ruling on double jeopardy in Hetenyi is the law of the land. Defendant may be retried on homicide charges not greater than manslaughter in the first degree.

The order appealed from reversing the judgment of conviction and granting a new trial should be affirmed.

Burke, J. (concurring).

I concur in the result reached in this case. However I do not agree that the double jeopardy provisions of the Fifth Amendment of the Federal Constitution are applicable to State criminal proceedings. (Palko v. Connecticut, 302 U. S. 319; Brantley v. Georgia, 217 U. S. 284.) The United States Supreme Court in 1905 held that after a reversal of a defendant’s conviction for a lesser crime the double jeopardy provision of the Fifth Amendment is not violated by his later conviction for a higher degree crime in a territorial court. (See Trono v. United States, 199 U. S. 521.)

Be that as it may, at the present time because of changing conditions the concept of double jeopardy should develop responsively to the changing ideas of justice. Stare decisis might be sufficient if this were a static world. I think therefore that the present ruling is called for as a natural development in the quality of justice now accorded to the accused in this State. This change in the law can best be achieved by way of a broad interpretation of our State Constitution.

The later circumstance of a reversal on the law cannot erase the fact that a jury’s conviction on a lesser degree of a crime is a tacit acquittal of the higher crimes charged in the indictment. It is impractical not to acknowledge this fact in a case involving a later reversal when we have long recognized that the jury’s silence is “ equivalent to a verdict of not guilty ” in a case where the lesser conviction is undisturbed (see People v. McCarthy, 110 N. Y. 309, 314).

From this standpoint retrial of this defendant on all counts in the indictment would amount to his being twice tried for the same crime. Such a trial I believe would violate the protections afforded to all accused in the Bill of Bights of our State Constitution (art. I, § 6).

Modern concepts of fundamental fairness would be gravely dis-served were we not to view the defendant’s present situation as falling within the area of constitutional protection. Consequently the defendant’s retrial ought to be limited to no more serious a charge on the indictment than first degree manslaughter “in view of the fundamental character of the rule that a man shall not be twice vexed for the same cause and the deep roots it throws into the history of the criminal law ’ ’. (People v. Lo Cicero, 14 N Y 2d 374, 378.)

Scileppi, J. (concurring in part, dissenting in part).

I agree with the majority that a new trial must be had because of the admission into evidence of the statement which was made by the defendant at the police station, after the law firm which represented the defendant had contacted the police. However, I believe that the double jeopardy provisions of the Federal and State Constitutions do not prohibit the defendant from being retried for a crime higher than manslaughter in the first degree.

Without retracing the majority’s steps, I observe that sections 464 and 544 of the Code of Criminal Procedure have steadily and consistently been interpreted as late as last June in Matter of Fiorillo v. Farrell (16 N Y 2d 678)—a unanimous decision of this court—to permit the retrial of a defendant for the greater degree of a crime, after he had been convicted of a lesser degree of the crime charged in the indictment and has secured a new trial following an appeal. Perhaps the most succinct statement of the long-established rule is to be found in People v. Ercole (4 N Y 2d 671, 620-621, decided 7 months after Green v. United States, 355 U. S. 184):

“It is well-settled law in this State that when a defendant procures a reversal of his conviction and sentence for legal error at trial, he may not plead the former proceedings in bar to a second trial for the same offense. Upon reversal, the defendant is deemed to be in precisely the same position as though there had been no trial (People ex rel. Sloane v. Lawes, 255 N. Y. 112,117; People v. McGrath, 202 N. Y. 445, 451; People v. Palmer, 109 N. Y, 413, 418-419). As this court stated in
the Palmer case: ‘ * * * [i]f reversal of the judgment of conviction follows, that judgment, as well as the record of the former trial, have been annulled and expunged by the judgment of the appellate court, and they are as though they never had been; while the indictment is left to stand as to the crime, of which the prisoner had been charged and convicted, as though there had been no trial’ (pp. 419-420; emphasis added). So thoroughly does a reversal operate to vitiate the former proceedings that the defendant may be tried upon a superseding indictment which contains a count not included in the first indictment (People v. Cocco, 3 N Y 2d 716), and he may be retried upon the original indictment even as to those higher degrees of crime of which he had been acquitted by the jury at the first trial (People v. McGrath, supra; People v. Palmer, supra; People v. Caccamise, 187 Misc. 795, 706). More particularly apropos of the case at bar, new trials have been ordered following reversals of convictions based on indictments illegally amended during the course of trial. (See People v. Bromwich, 200 N. Y. 385, affg. 135 App. Div. 67; People v. Geyer, 196 N. Y. 364; People v. Poucher, 30 Hun 576, appeal dismissed 99 N. Y. 610.) The ground upon which the reversal is placed is not material (15 Am. Jur., Criminal Law, § 427, p. 91).”
* * *
‘ ‘ An appeal in a criminal case is a matter of statutory favor (People ex rel. Commissioners of Public Charities d Correction v. Cullen, 151 N. Y. 54, 56; People v. Trezza, 128 N. Y. 529, 532). When a defendant accepts it for the purpose of vacating his conviction, he is deemed to ask for a just re-examination of the question of his guilt (People v. Palmer, supra, pp. 418-420).”

Since the majority does not purport to suddenly “ discover ” a new interpretation of the relevant statutes, and since Fiorillo was decided on June 10,1965, after Malloy v. Hogan (378 U. S. 1 [June 15, 1964]), after Murphy v. Waterfront Comm. (378 U. S. 52 [June 15, 1964]) and after Pointer v. Texas (380 U. S. 400 [April 5, 1965]), I conclude that the only relevant event occurring between our decision in Fiorillo and the case at bar is the decision in United States ex rel. Hetenyi v. Wilkins (348 F. 2d 844 [July 13, 1965]).

Since the decisions of the Second Circuit are not binding on this court, I, for one, would not erase the legislatively established wishes of the People of this State, manifested not only in sections 464 and 544 of the Code of Criminal Procedure, but also in their long acceptance of our interpretation of these statutes. Moreover, the decision in Hetenyi is contrary to decisions of the Supreme Court of the United States wherein it was held that the double jeopardy provision of the Fifth Amendment was not applicable against the States, and that, having secured a reversal of a lesser grade of a crime, a defendant could properly be tried and convicted of the higher grade (e.g., Brantley v. Georgia, 217 U. S. 284; Palko v. Connecticut, 302 U. S. 319). Brantley involved a defendant who had been convicted of manslaughter, secured a reversal, and was convicted of murder. Addressing itself to the contention that Brantley’s rights under the Fifth Amendment to the United States Constitution had been violated, the Supreme Court said: " The contention is absolutely without merit. It is not a case of twice in jeopardy under any view of the Constitution of the United States ” (217 U. S., p. 285). Palko, a stronger case for the defendant, upheld as constitutionally valid the conviction of a defendant for first degree murder after his conviction for second degree murder had been reversed on an appeal by the People. In Green v. United States (355 U. S. 184), relied upon by the Second Circuit in Iletenyi, the court took great pains to announce that Palho and Brantley were not controlling on the double jeopardy question “since they involved trials in state courts” (355 U. S., pp. 194-195, n. 15). Recapitulating, I do not believe that we are bound by the Second Circuit’s decision in this matter, especially when there are binding Federal Supreme Court cases directly to the contrary.

The majority must be relying upon Malloy v. Hogan (378 U. S. 1 [treating only the self-incrimination clause of the Fifth Amendment]), Murphy v. Waterfront Comm. (378 U. S. 52 [treating a refinement of the self-incrimination clause — immunity legislation]), and Pointer v. Texas (380 U. S. 400 [treating with the Sixth Amendment’s right of confrontation]) for the proposition that those provisions of the Bill of Bights which are fundamental are incorporated into the Fourteenth Amendment and are thus applicable against the States. If this be the rationale, I disagree with the determination that the situation before the court is a violation of fundamental fairness — a violation which this entire court was unwilling to find just 9 months ago when we decided Fiorillo. In addition on this point, when Green was decided, 19 out of 36 States which had occasion to pass on the question shared our view (Green v. United States, 355 U. S. 184, 216, n. 4, Frankfurter, J., dissenting; see, also, 61 ALR 2d 1141).

With respect to the requirements of the State Constitution, I do not perceive what " natural development in the quality of justice now accorded to the accused in this State ” has prompted a complete departure — in only 9 months — from our ruling in Matter of Fiorillo v. Farrell (supra). If the changing conditions are such that it is desirable to effect this radical change in the law, I submit that it is not for this court but for the Legislature to do so.

I vote to grant a new trial and to exclude the statement given to the Chief of Detectives after the law firm had communicated with the police. However, I would permit the defendant to be retried for the higher degree of the crime.

Chief Judge Desmond and Judges Fuld and Bergan concur with Judge Van Voorhis; Judge Burke concurs in the result in a separate memorandum in which Judge Keating concurs; Judge Scileppi dissents in part in a separate memorandum.

Order affirmed. 
      
       Said amendment provides as follows: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in eases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation!”
     