
    The People of the State of New York, Respondent, v. George De Renzzio, Appellant.
    Argued September 27, 1966;
    decided December 30, 1966.
    
      Warren M. Weitzman and James H. Durand for appellant.
    I. The totality of the circumstances deprived appellant of a fair trial and mandates a reversal. (People v. Mleczko, 298 N. Y. 153.) II. Appellant was deprived of his constitutional right to the effective aid of counsel and was rushed to trial in a prejudicial atmosphere; this contention is made in good faith, is supported by the circumstances, and may not be foreclosed by the lack of a complete record. (People v. De Renzzio, 23 A D 2d 842; People v. McLaughlin, 291 N. Y. 480; People v. Adams, 22 A D 2d 892, 12 N Y 2d 417; People v. Lomoso, 284 App. Div. 670; People v. Columbo, 24 A D 2d 505; People v. Silverman, 3 N Y 2d 200; People v. Snyder, 297 N. Y. 81; Powell v. Ala
      
      bama, 287 U. S. 45; People v. Becker, 135 Misc. 471; United States v. Yodock, 224 F. Supp. 877; United States v. Helwig, 159 F. 2d 616.) III. The trial court’s charge with respect to the voluntariness of appellant’s inculpatory statements was grossly erroneous and deprived him of his constitutional right to a jury determination thereof. Moreover, use of the post-indictment statement is prohibited. The trial court unconstitutionally withdrew the question of voluntariness from the jury. (Jackson v. Denno, 378 U. S. 368; Malinski v. New York, 324 U. S. 401; Rogers v. Richmond, 365 U. S. 534; People v. Huntley, 15 N Y 2d 72; People v. Pignataro, 263 N. Y. 229; People v. Nunziato, 233 N. Y. 394; People v. Silverman, 23 A D 2d 947; People v. Vitagliano, 15 N Y 2d 360; People v. Alex, 265 N. Y. 192; People v. Kelly, 264 App. Div. 14; People v. Mummiani, 258 N. Y. 394; People v. Noble, 9 N Y 2d 571; People v. Becker, 210 N. Y. 274; People v. McLucas, 15 N Y 2d 167; People v. Leyra, 302 N. Y. 353.) IV. The use of appellant’s postindictment statement, at least without a proper charge, was reversible error. (People v. Waterman, 9 N Y 2d 561; Massiah v. United States, 377 U. S. 201; People v. Howard, 12 N Y 2d 65; People v. Loria, 10 N Y 2d 368; People v. Taylor, 16 N Y 2d 1038; People v. Hocking, 15 N Y 2d 973; Johnson v. New Jersey, 384 U. S. 719.) V. The District Attorney’s summation contained many inflammatory and highly prejudicial comments. (People v. Ochs, 3 N Y 2d 54; People v. Lovello, 1 N Y 2d 436; People v. Jackson, 7 N Y 2d 142; People v. Swanson, 278 App. Div. 846; People v. Teiper, 186 App. Div. 830; Brown v. United States, 298 F. 428; Berger v. United States, 295 U. S. 78.) VI. Defense counsel was improperly denied access to the prior inconsistent Grand Jury testimony of Canariato, a vital witness for the prosecution, which he requested for impeachment purposes. (Barrett v. New York Cent. & H. R. R. R. Co., 157 N. Y. 663; People v. Rosario, 9 N Y 2d 286; Carroll v. Krause, 295 Ill. App. 552; People v. Dales, 309 N. Y. 97; People v. Walsh, 262 N. Y. 140; People v. Schainuck, 286 N. Y. 161; People v. Zimmerman, 10 N Y 2d 430; People v. Sabella, 24 A D 2d 885; Pointer v. Texas, 380 U. S. 400.) VII. The trial court’s charge on the law of felony murder was both erroneous and unfair to appellant. (People v. Marwig, 227 N. Y. 382; People v. Hüter, 184 N. Y. 237; People v. 
      Levalie, 6 App. Div. 230; People v. Childs, 21 A D 2d 809; People v. Lupo, 305 N. Y. 448; State Mut. Life Assur. Co. v. Heine, 141 F. 2d 741; People v. Elling, 289 N. Y. 419; People v. Sobieskoda, 235 N. Y. 411; People v. Wood, 8 N Y 2d 48; People v. Stern, 201 App. Div. 687, 237 N. Y. 514; People v. Johnson, 6 A D 2d 181.) VIII. Appellant’s guilt was not proven "beyond a reasonable doubt; the failure to advise defense counsel of false police testimony was also prejudicial. (People v. Sobieskoda, 235 N. Y. 411; People v. Giusto, 206 N. Y. 67; People v. Elling, 289 N. Y. 419; People v. Savvides, 1 N Y 2d 554; People v. Zimmerman, 10 N Y 2d 430; People v. Fisher, 4 N Y 2d 943.)
    
      Isidore Bollinger, Bistrict Attorney (Walter E. Billon of counsel), for respondent.
    I. Defendant is seeking a review of the judgment of conviction on theories which were not contemplated when this case was tried in the year 1938 and for which appropriate exceptions were not taken to present questions of law for this court. (People v. Gitlow, 195 App. Div. 773, 234 N. Y. 132; People v. Huson, 187 N. Y. 97.) II. No objection was made to the admission into evidence of the statements given by defendant to the District Attorney. The voluntariness of the statements was not an issue raised at the trial or submitted to the jury. Moreover, the substance of the statements had been conceded in defendant’s opening to the jury. (People v. Hill and Catanzaro, 17 N Y 2d 185; People v. Waterman, 12 A D 2d 84, 9 N Y 2d 561; People v. Spano, 4 N Y 2d 256, 360 U. S. 315; Johnson v. New Jersey, 384 U. S. 719; People v. Huntley, 15 N Y 2d 72.) III. Defendant was assigned for his defense competent legal counsel who admittedly had ample opportunity to prepare for trial. His contention that he had been deprived of effective legal assistance and tried in a prejudicial atmosphere was not urged prior to or during the trial. (People v. Prosser, 309 N. Y. 353; People v. Spinney, 16 A D 2d 669; People v. Dolac, 3 A D 2d 351, 3 N Y 2d 945; People v. Tyson, 15 N Y 2d 866; People v. De Renzzio, 14 N Y 2d 732.) IV. The trial court’s ruling on defendant’s request to examine the Grand Jury testimony of Canariato was proper. (People v. Reimringer, 116 Cal. App. 2d 332; People v. Rosario, 9 N Y 2d 286; People v. Walsh, 262 N. Y. 140.) V. The trial court’s charge to the jury on the law of felony murder, to which no exception had been taken, was proper and sufficient. (People v. Wood, 8 N Y 2d 48; People v. Chapman, 224 N. Y. 463.) VI. No error was committed during the summation of the District Attorney. (People v. Dwyer, 160 App. Div. 542, 215 N. Y. 46; People v. Pindar, 210 N. Y. 191; People v. Slover, 232 N. Y. 264; People v. Levine, 297 N. Y. 144; People v. Gitlow, 195 App. Div. 773, 234 N. Y. 132; People v. Loose, 199 N. Y. 505; People v. Doody, 172 N. Y. 165.) VII. The evidence overwhelmingly established defendant’s guilt of felony murder beyond a reasonable doubt. (People v. Smith, 232 N. Y. 239; People v. Marwig, 227 N. Y. 382; People v. Lunse, 278 N. Y. 303; Dolan v. People, 64 N. Y. 485.)
   Bergan, J.

In January, 1938, now almost 30 years ago, a police sergeant interrupting a robbery in progress at a pawnshop •in the Bronx was shot dead and a patrolman accompanying him was seriously wounded.

Defendant De Renzzio, running out of the pawnshop, was immediately captured by a policeman at gunpoint. He was convicted of murder, first degree, but the jury recommending life imprisonment, he escaped capital punishment.

Defendant made several statements. Two were given to the police before indictment; one was given to the District Attorney before and one after indictment. Defendant was accorded a skillful and energetic defense by assigned counsel. Every strategic advantage open at the trial was taken by defendant’s lawyer; and although the defendant had been captured at the scene of the crime and a police sergeant had there been murdered, the jury recommended the lesser of two available punishments. The District Attorney had strongly urged to the jury that it impose the death penalty. Beading the record makes it very clear that lawyer-skill had saved defendant from capital punishment.

This background of a case tried long ago, but now here on appeal, is helpful to place in perspective the main constitutional question raised by appellant: that it was a deprivation of defendant’s right to counsel to take a statement from him after indictment.

Defendant did not object on the trial to the reception of that statement. On the contrary, it was used affirmatively by defendant’s counsel in argument to the jury to suggest that defendant had taken a less significant part in the crime than his companions. It was so used in lieu of any trial explanation by the defendant himself who chose not to be a witness.

The appeal is here now because, the original appeal to the Appellate Division having been dismissed in 1938 for lack of prosecution in accordance with the then prevailing practice, the denial of a much later motion to reinstate it was reversed here in 1964 (14 N Y 2d 732). The appeal was heard in 1966 at the Appellate Division and the judgment of conviction affirmed on a carefully reasoned opinion (25 A D 2d 652).

Almost a quarter of a century after the trial of the present case this court in 1960 announced a rule of law that a statement taken of an accused after indictment and without the presence of counsel was in violation of the constitutional right to counsel and thus inadmissible (People v. Di Biasi, 7 N Y 2d 544). This was followed and implemented in 1961 by People v. Waterman (9 N Y 2d 561). No such rule had been announced in 1938; and the understanding of the Bar on this point of law was quite the other way.

In basic conceptional theory the pronouncement of the common-law court is deemed retroactively to have been the rule of the past. A decision states the law as it ought rightly to have been understood from the beginning. But this is one of the fictions by which the common law lived; and nowhere is it more manifestly a fiction than in the area of constitutional interpretation.

The fact is that there was a different judicial reading of the Constitution in 1938 and in 1960 on the admissibility of a post-indictment statement. There seems no compelling policy reason why, because of a general theory of retroactivity of judicial pronouncement we must, or should, impose a subsequently developed theory of law upon a trial competently managed nearly 30 years ago.

We have no valid basis for assuming our predecessors were so entirely wrong and we quite so entirely right about our views that we should undo what was correctly done many years ago according to the general understanding of lawyers on how the Constitution should be read.

The decisions in People v. Di Biasi (supra) and People v. Waterman (supra) relating to admissibility of postindictment admissions were each based on appropriate objection on the trial to the reception of the admissions.

We ought not devise an objection many years from the time of trial which skillful counsel did not choose to make; or to decide in a review of this kind of a case that an objection is not required and the question is saved for review. This would run against the deeply imbedded policy that an objection is necessary to raise a law question on an appeal.

To set aside such a conviction upon the basis of a changed view of the Judges on what is a constitutional privilege, and although no objection was made by Skilled counsel at the trial, would discredit the stability of any ordered legal system. Such a result would do little to enhance confidence in the stability of New York law.

Although in People v. McLucas (15 N Y 2d 167, 172) it was held that an exception is unnecessary to ‘ ‘ review a deprivation of a fundamental constitutional right ”, this case seems to run directly against the then recently decided case of People v. Friola (11 N Y 2d 157) which held explicitly that objection is necessary to preserve for appellate review an issue of constitutional law. This had been consistently held in many New York cases and its principle was reaffirmed in the later case of People v. Howard (12 NY 2d 65).

But the McLucas rule ought not be applied to the present case. Here there was not only no objection to the reception of the post-indictment statement, but the statement itself was employed in strategical utilization by defendant’s counsel at the trial.

This statement was, in effect, contrasted in summation with the earlier statement made by defendant as indicating to the jury a lesser degree of culpability. Portions of the statement taken by the District Attorney were read literally to the jury by defense counsel, including exculpatory explanations which were employed to serve the place of his taking the stand. This was skillfully developed in the argument to the jury.

In looking at this aspect of the ease we approach, indeed, the vital center of the adversary system. The Constitution in guaranteeing the accused in a criminal case the “ Assistance of Counsel for his defence ” deals neither with a shadowy figure standing beside the accused nor with an abstract idea. It envisages a lawyer, skilled in advocacy, a match for the prosecutor, and in full control of the management of the defense at the trial.

If such a lawyer chooses not to raise a point of constitutional law in a professionally competent defense, either because he believes he could use material affirmatively to advantage or because he believes it better for his client not to raise it, we would work fundamental changes in the adversary system if we determine he should have done that which he had decided advisedly not to do.

The Supreme Court has held in Massiah v. United States (377 U. S. 201) that an electronic recording of defendant’s conversations made by Federal agents after indictment deprived the accused of right to counsel, and it has held that a failure to object in a State court to proceedings which violate Federal constitutional rights does not effect a waiver (McLeod v. Ohio, 378 U. S. 582, 381 U. S. 356; O’Connor v. Ohio, 385 U. S. 92).

But these cases touch merely upon the negative side of absence of objection. We have here not merely a failure to raise the constitutional point now argued, but a decision not to raise it seems to have been reached as a strategic choice at the trial.

The judgment should be affirmed.

Burke, J.

(concurring). I am in agreement with Judge Bergan that in this case the judgment of conviction should be affirmed. Here the case is supposedly in the ‘ ‘ normal appellate process,” but in actuality it is before us only because the Appellate Division reinstated an appeal dismissed over 20 years ago. The record indicates that under the standard of due process then enunciated by our courts defendant received a fair trial with the assistance of able counsel and the conclusion of the trial court and jury as to his guilt is even to this day unassailable in terms of justice. With the postindictment statement the People presented substantially identical and voluntarily given preindictment statements in addition to the testimony of eyewitnesses which established defendant’s role in the crime.

As Judge Bergan’s opinion so ably points out, it ordinarily has been the rule of this court that a question of law can only be reviewed where an objection has been raised at the trial. In over a century we have departed from this rule only on rare occasions. (See Cohen and Karger, Powers of the New York Court of Appeals, p. 750.) In these few instances there has been either a jurisdictional defect below, which would have made the trial a nullity (see People v. Bradner, 107 N. Y. 1, 4-5), or there was a deprivation of a right so fundamental that defendant’s conviction on scant evidence was offensive to our concept of substantial justice. In People v. McLucas (15 N Y 2d 167), for example, we held that the trial court’s instructions to the jury which in effect made reference to the defendant’s failure to take the stand were “ seriously erroneous and prejudicial.” (15 N Y 2d, p. 171; emphasis supplied.) Therefore, I do not believe we should depart from our practice in a ease such as this where the allegedly improperly admitted evidence is merely cumulative to other admissible and overwhelming evidence of guilt which fully supports the conviction.

In the Appellate Division the defendant had a full and complete appellate review of every issue here raised, because in that court review is not restricted to issues preserved by an objection. The Appellate Division has discretion to order a new trial ‘ ‘ if it be satisfied that the verdict against the prisoner was against the weight of evidence or against the law, or that justice requires a new trial, whether any exception shall have been taken or not, in the court below.” (Code Crim. Pro., § 527.) As a matter of fact, in considering defendant’s contentions, that court expressly stated: “We recognize our right to reverse in the interests of justice (People v. Kelly, 12 N Y 2d 248) but we find nothing in this record that moves us towards such a conclusion.” (25 A D 2d 652, 653.)

In addition, even if we were to overlook for the moment the fact that no objection was made to the admission of defendant’s postindictment statement on the trial and consider his present constitutional objection to its admission based upon People v. Di Biasi (7 N Y 2d 544), People v. Waterman (9 N Y 2d 561), and Massiah v. United States (377 U. S. 201), reversal of defendant’s conviction is not called for. Application of the rule enunciated in those recent cases to the case at bar would clearly be injurious to the orderly administration of justice. As the recently decided cases of Johnson v. New Jersey (384 U. S. 719) and People v. McQueen (18 N Y 2d 337) so well illustrate, the theory that because a practice is held today not to meet current standards of due process it necessarily constituted a denial of due process at an earlier time and is a ground for reversal today is to be rejected as jurisprudentially unsound.

In the Johnson and McQueen cases (supra) the issue was whether the rules propounded in Escobedo v. Illinois (378 U. S. 478) and Miranda v. Arizona (384 U. S. 436) should be applied retroactively, and both our court and the Supreme Court recognized the disorder such retroactive application of these rules would cause in the administration of justice. As the Supreme Court pointed out in Johnson the real key to determining whether such disorder was warranted was whether the newly enunciated rule “ affected ‘ the very integrity of the fact-finding process ’ and averted ‘the clear danger of convicting the innocent.’” (384 U. S., supra, pp. 727-728.) The court noted further that the “ choice between retroactivity and nonretroactivity in no way turns on the value of the constitutional guarantee involved ’ ’ (p. 728).

The rule barring the use of postindictment statements is in reality not fundamentally different in its effect upon the ‘ ‘ integrity of the fact-finding process ” than that laid down in Escobedo and Miranda (supra). Hence it should not be applied to cases in this State in which the statement was taken by the authorities long before the rule in People v. Di Biasi (supra) was announced. Even though there has been some indication by the Supreme Court that the Massiah rule is to be applied retroactively (see McLeod v. Ohio, 378 U. S. 582, 381 U. S. 356, and Lyles v. Beto, 379 U. S. 648), the status of these cases as authority for the proposition that the Massiah rule is to be accorded retroactive application is extremely doubtful. Both McLeod v. Ohio (supra) and Lyles v. Beto (supra) were decided on the papers submitted in support of the petition for certiorari and without benefit of oral argument and the brief Per Curiam opinions handed down in each give no indication that the court considered the possibility that the rule might be applied only prospectively. Both cases were decided prior to Johnson (supra) and if the analysis employed in Jolnmson is here applied the conclusion is inescapable that the Massiah rule should have only prospective application.

Under the circumstances of this case there is no showing that due process calls for an exception to the rule requiring an objection before a question of law may be reviewed by the Court of Appeals. Nor are the proven facts of this 25-year-old case such as to justify a finding that because of a newly coined rule of evidence a new trial is required.

Keating, J.

(concurring). I concur in the result reached by the majority. I do not agree, however, that the fact that no objection was taken to the admission of the postindictment statement necessarily precludes the defendant from raising the point on appeal. The issue presented here is whether the rule enunciated by us in People v. Waterman (9 N Y 2d 561), and by the Supreme Court in Massiah v. United States (377 U. S. 201), should be given retroactive application. That decision should, in turn, be based upon the same considerations outlined by the Supreme Court in Johnson v. New Jersey (384 U. S. 719), and relied upon by us in People v. McQueen (18 N Y 2d 337). If it is determined for reasons of policy that the change in the law effectuated by Waterman and Massiah should be given retroactive effect then the fact that the defendant failed to make a useless objection should be of no consequence. (O’Connor v. Ohio, 385 U. S. 92; People v. McLucas, 15 N Y 2d 167.)

The Waterman-Massiah rule is quite similar in purpose and effect to that formulated by the Supreme Court in Miranda v. Arizona (384 U. S. 436) and, for reasons similar to those outlined in Johnson v. New Jersey (supra), I believe that the rule of those cases should not be applied retroactively. (United States v. Fay, 360 F. 2d 389 [2d Cir., 1966].)

The judgment of the Appellate Division should be affirmed.

Chief Judge Desmond and Fuld, J.

(dissenting). An incriminatory statement was'taken from the defendant after his indictment and while he did not have the assistance of counsel. The taking of this statement and its subsequent introduction into evidence violated the defendant’s right to counsel and his privilege against self incrimination. (People v. Waterman, 9 N Y 2d 561; Massiah v. United States, 377 U. S. 201.)

The defendant’s failure to object to the introduction of this evidence at his trial does not preclude him from raising the question on appeal, for no exception is necessary to gain direct “ appellate review [of] a deprivation of a fundamental constitutional right”. (People v. McLucas, 15 N Y 2d 167, 172; O’Connor v. Ohio, 385 U. S. 92.)

Opinion by Judge Beiigan. All concur, Judges Burke and Keating in separate opinions, except Chief Judge Desmond and Judge Fuld who dissent and vote to reverse in a memorandum.

Judgment affirmed.  