
    The People of the State of New York, Respondent, v. Peter Donovan and Harry Mencher, Appellants.
    Argued May 9, 1963; reargued September 30, 1963;
    decided October 8, 1963.
    
      J ohn B. Corcoran for Peter Donovan, appellant.
    I. Donovan’s constitutional rights to the aid of counsel and to a fair trial were violated by the investigating authorities; the judgment must, therefore, be reversed. (People v. Meyer, 11 N Y 2d 162; People v. Noble, 9 N Y 2d 571; Matter of Finocchairo v. Kelly, 11 N Y 2d 58; Crooker v. California, 357 U. S. 433; Cicenia v. Lagay, 357 U. S. 504.) II. Recent decisions of this court compel the adoption in New York State of the McNabb rule; the judgment of conviction of Donovan should, therefore, be reversed in the exercise of this court’s supervisory power. (McNabb v. United States, 318 U. S. 332; People v. Mummiani, 258 N. Y. 394; People v. Everett, 10 N Y 2d 500; People v. Di Biasi, 7 N Y 2d 544; Culombe v. Connecticut, 367 U. S. 568; People v. Lane, 10 N Y 2d 347.) III. The manner in which the alleged oral and written confessions were extorted from defendant Donovan and their receipt in evidence upon the trial constitute violations of Donovan’s rights guaranteed by the United States Constitution and the Constitution of the State of New York. (People v. Malinski, 292 N. Y. 360, 324 U. S. 401; Ashcraft v. Tennessee, 322 U. S. 143; Chambers v. Florida, 309 U. S. 227; Lyons v. Oklahoma, 322 U. S. 596; Lisenba v. California, 314 U. S. 219.)
    
      
      Nancy Carley, Frank R. Klein and Arthur Lonschein for Harry Mencher, appellant.
    I. Defendant was denied a fair trial in violation of the due process of law clause of the Fourteenth Amendment to the Constitution of the United States on his contention that his confession and admissions were coerced. (People v. Leyra, 302 N. Y. 353; Griffith v. Rhay, 282 F. 2d 711; People v. Drislane, 8 N Y 2d 67; People v. Crum, 272 N. Y. 348; United States v. La Vallee, 270 F. 2d 513; People v. Kress, 284 N. Y. 453; People v. Edwards, 282 N. Y. 413; People v. Lovello, 1 N Y 2d 436.) II. Under the circumstances of the case, defendant was denied a fair consideration of his case by a joint trial with defendant Fiorillo. (People v. Fisher, 249 N. Y. 419; People v. Snyder, 246 N. Y. 491; People v. Doran, 246 N. Y. 409.) III. The admission of defendant’s confession in evidence was in violation of his constitutional rights under the due process of law clause of the Fourteenth Amendment to the United States Constitution. (Bolger v. United States, 189 F. Supp. 237, 293 F. 2d 368; United States v. Denno, 309 F. 2d 543; People v. Everett, 10 N Y 2d 500; People v. Lane, 10 N Y 2d 347; People v. O’Neill, 11 N Y 2d 148; People v. Noble, 9 N Y 2d 571; People v. Waterman, 9 N Y 2d 561; People v. Rodrigues, 11 N Y 2d 279.) IV. The trial court’s remarks in sustaining the prosecutor’s objection to defense counsel’s remarks on the failure of the prosecutor to produce in evidence the loot allegedly possessed by Mencher denied defendant a fair trial.
    
      Frank D. O’Connor, District Attorney (Benj. J. Jacobson of counsel), for respondent.
    I. There was no violation of any right of appellants during the police investigation of the crime and prior to arraignment; and the confessions of appellants — oral and written — suffered from no constitutional defect and were properly admitted in evidence. (Culombe v. Connecticut, 367 U. S. 568; People v. Perez, 300 N. Y. 208; People v. Rogers, 18 N. Y. 9; Crooker v. California, 357 U. S. 433; Stein v. New York, 346 U. S. 156; People v. Everett, 10 N Y 2d 500; People v. Lane, 10 N Y 2d 347; People v. Alex, 265 N. Y. 192; People v. Mummiani, 258 N. Y. 394; People v. Trybus, 219 N. Y. 18; Balbo v. People, 80 N. Y. 484; People v. Vargas, 7 N Y 2d 555; People v. Di Biasi, 7 N Y 2d 544; People v. Meyer, 11 N Y 2d 162; Trilling v. United States, 260 F. 2d 677; United States v. Vita, 294 F. 2d 524; Mallory v. United States, 354 U. S. 449; Goldsmith v. United States, 277 F. 2d 335, 364 II. S. 863; People v. Schermerhorn, 203 N. Y. 57; People v. Bretagna, 298 N. Y. 323, 336 U. S. 919.) II. It has never been held as an abstract principle that a suspect has a constitutional right to counsel during the process of preliminary police investigation and interrogation and before the commencement of judicial proceedings. In fact, the contrary has been expressly pronounced to be the rule. (Cicenia v. Lagay, 357 U. S. 504; Crooker v. California, 357 U. S. 433.) III. There is a presumption that a confession is voluntary and, absent evidence to the contrary, is competent and admissible in evidence. (People v. Rogers, 192 N. Y. 331; People v. Doran, 246 N. Y. 409; People v. White, 176 N. Y. 331; Murphy v. People, 63 N. Y. 590; People v. Kennedy, 159 N. Y. 346; United States v. Richmond, 295 F. 2d 83, 368 U. S. 948.) IV. Mencher’s testimony is not of such weight and credibility, or of such" nature, which compels a conclusion that a finding that the confession was voluntary would be against the weight of the credible evidence and should have been excluded from evidence, as a matter of law. (People v. Leyra, 302 N. Y. 353; People v. Catalfano, 284 App. Div. 569; People v. White, 176 N. Y. 331; Murphy v. People, 63 N. Y. 590; People v. Mleczko, 298 N. Y. 153; People v. Valletutti, 297 N. Y. 226.) V. No right of Mencher was impinged by being tried jointly with Fiorillo.
   Fuld, J.

On this appeal by the defendants Donovan and Mencher from convictions for murder in the first degree, the only issue of consequence is the admissibility of Donovan’s written confession. We are thus again confronted with the problem of achieving ‘ ‘ a balance between the competing interests of society in the protection of cherished individual rights * # * and in effective law enforcement and investigation of crime ”. (People v. Waterman, 9 N Y 2d 561, 564.)

James Beatty, a payroll guard, was shot to death during the course of a robbery committed in Queens County on May 10, 1961. Donovan was apprehended on the following day, his codefendant Mencher on May 12. Both were questioned at a police station and after a period of interrogation by police and prosecutor admitted their guilt orally and in writing. The written confession was taken from Donovan after the police had refused to allow an attorney, retained for him by his family while he was in custody, to see or speak with him. In addition — and this the trial court charged the jury “as a matter of law” — at the time the confession was procured, Donovan was being unlawfully detained in violation of our prompt arraignment statute (Code Grim. Pro., § 165; see, also, Penal Law, § 1844).

Since we have concluded that a confession obtained under the circumstances present here is inadmissible under New York law, we find it unnecessary to consider whether or not the Supreme Court of the United States would regard its use a violation of the defendant’s rights under the Federal Constitution. (Compare Crooker v. California, 357 U. S. 433, and Cicenia v. Lagay, 357 U. S. 504, with Culombe v. Connecticut, 367 U. S. 568 and Haynes v. Washington, 373 U. S. 503.) In other words, we are of the opinion that, quite apart from the Due Process Clause of the Fourteenth Amendment, this State’s constitutional and statutory provisions pertaining to the privilege against self incrimination and the right to counsel (N. Y. Const., art. I, § 6; Code Grim. Pro., §§ 8, 188, 308, 699), not to mention our own guarantee of due process (N. Y. Const., art. I, § 6), require the exclusion of a ' confession taken from a defendant, during a period of detention, after his attorney had requested and been denied access to him.

It needs no extensive discussion to establish the high place which the privilege against self incrimination enjoys in our free society. The right of an accused to counsel as a procedural safeguard in our system of government enjoys equal eminence. (See, e.g., People v. Waterman, 9 N Y 2d 561, 565, supra; Cicenia v. Lagay, 357 U. S. 504, 509, supra; Crooker v. California, 357 U. S. 433, 439, supra.) In the case before us, these rights and privileges converge, for one of the most important protections which counsel can confer while his client is being detained by the authorities is to preserve his client’s privilege against self incrimination and prevent the deprivation of that and other rights which may ensue from such detention. It would be highly incongruous if our system of justice permitted the 'district attorney, the lawyer representing the State, to extract a confession from the accused while his own lawyer, seeking to speak with him, was kept from him by the police.

We have held — and the United States Supreme Court has recognized (see Crooker v. California, 357 U. S. 433, 439-440, supra) — that the right to counsel extends to pretrial proceedings as well as to the trial itself. (See, e.g., People v. Waterman, 9 N Y 2d 561, supra; People v. Meyer, 11 N Y 2d 162; People v. Rodriguez, 11 N Y 2d 279, 284-285.) The need for a lawyer is surely as great then as at any other time; as Mr. Justice Black pointedly observed in the course of a dissent, “ The right to use counsel at the formal trial is a very hollow thing when, for all practical purposes, the conviction is already assured by pretrial examination.” (In re Groban, 352 U. S. 330, 344.)

It has, however, been urged that to permit a suspect, in cases such as the present, to confer with an- attorney before talking to the police would preclude effective police interrogation and would in many instances impair their ability to solve difficult cases. (See, e.g., Crooker v. California, 357 U. S. 433, 441, supra; Cicenia v. Lagay, 357 U. S. 504, 509, supra; People v. Escobedo, 28 Ill. 2d 41, 47-50.) Weighty though such considerations be, they do not permit us to ignore rights due the accused under our law. We gave thought to somewhat similar arguments in recent cases and rejected them as insufficient reason for disregarding individual rights when we stamped as impermissible police interrogation of an accused, in the absence of counsel, following his arraignment or indictment and held inadmissible the resulting confessions even though they were concededly uncoerced and voluntary. (See People v. Rodrigues, 11 N Y 2d 279, 28-285, supra; People v. Meyer, 11 N Y 2d 162,164, supra; People v. Waterman, 9 N Y 2d 561, supra; People v. Di Biasi, 7 NY 2d 544.)

We find these arguments equally unsubstantial in this case. Just as in those cases we condemned post-arraignment and post-indictment questioning ‘ without the protection afforded by the presence of counsel ” (People v. Waterman, 9 N Y 2d, at p. 565), so here we condemn continued incommunicado interrogation of an accused after he or the lawyer retained by him or his family has requested that they be allowed to confer together. And, it necessarily follows, if such a request is refused and a confession thereafter obtained, its subsequent use not only denies the accused the effective assistance of counsel but also, to quote from our opinion in Waterman (9NY 2d, at p. 565), “ contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.”

As a matter of fact, our decision in this ease was in a measure foreshadowed by People v. Noble (9 N Y 2d 571) which also involved a defendant who had been neither arraigned nor indicted. There, the defendant was questioned by an assistant district attorney shortly after his arrest. Ignoring the defendant’s query as to whether he was compelled to answer questions before consulting counsel, the prosecutor persisted in his interrogation and obtained a confession which was received in evidence against the defendant at the trial. The court reversed the conviction, holding that the statement should have been excluded. Judge Dye, speaking for himself and two other members of the court, declared that use of the statement 11 violated the fundamental fairness essential to the concept of justice ” (9NY 2d, atp. 574).

There is a like violation of fundamental fairness in the case now before us.

"We are reminded that, apart from the written confession, there was adequate, indeed' strong, evidence before the jury — such as proof of presence at the scene of the crime and accomplice testimony — to support the verdict of guilt against Donovan. That, however, does not justify an affirmance by this court, 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. (See, also, People v. Rosenfeld, 11 N Y 2d 290, 300; People v. Jackson, 7 N Y 2d 142,145; People v. Marendi, 213 N. Y. 600, 618-620.) 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. To disregard violation of the rule because there is proof in the record to persuade us of a defendant’s guilt would but lead to erosion of the rule and endanger the rights of even those who are innocent.

The admission in evidence of Donovan’s written confession requires reversal of his conviction and, since that confession, thus improperly before the jury, implicated his codefendant Mencher, there must also be a reversal of the latter’s conviction in the interests of justice. (See, e.g., People v. Rodriguez, 11 N Y 2d 279, 285, supra; People v. Waterman, 9 N Y 2d 561, 567, supra; People v. Noble, 9 N Y 2d 571, 575, supra; People v. Rudish, 294 N. Y. 500.)

The judgments of conviction should be reversed and a new trial ordered as to each defendant.

0’Bbieu, J.

(concurring). I concur in the views expressed by Judge Fuld.

The record reveals that the defendant Donovan’s confession was signed after the attorney who had been retained for him was denied permission to confer with his client.

The trial court charged as a matter of law that the police were guilty of violating the positive command of our Legislature to arraign without unreasonable delay a person taken into custody (Code Grim. Pro., § 165). Failure to do so constitutes a crime (Penal Law, § 1844). The. facts in this case show that the detaining officers were committing a crime against Donovan at the very same time that they were denying his attorney the right to confer with him. Here, the record indicates that the holding by the police of a “press conference ” was advanced as one of the reasons why the attorney (present and available) was denied permission to confer with Donovan. In fact, it is undisputed that the officer admitted that he would deny permission to any attorney seeking to confer with a client who was “under arrest” and “being questioned”.

Under the circumstances revealed by the record in these cases, the reception of Donovan’s written statement in evidence was improper. It implicated the codefendant, Mencher, and may have influenced the jury’s verdict as to him. In the interest of justice his conviction should also be reversed.

Naturally there will be many who will argue that, in view of the facts disclosed in the record and the jury’s findings thereon, the verdict of “ guilty ” was more than justified and therefore should be affirmed.

The answer to that contention was written many years ago (1918) by Chief Judge Hiscock, who, in the case of People v. Esposito (224 N. Y. 370, 372), stated: “It was immaterial that one might think that the defendant was guilty of the highest crime of which he could be convicted and that there was no danger that such a conviction would result in meting out to him greater punishment than he deserved. Such thoughts as these, if they existed, had no place in the presence of that fundamental principle of our jurisprudence that a man shall not be punished for an act, however abhorrent and criminal it may seem to be, until he has been justly and fairly convicted.” Many other eminent jurists have expressed similar thoughts since that time.

In my opinion the judgment of conviction as to each defendant should be reversed and each case sent back for a new trial.

Burke, J.

(dissenting). We dissent and vote to affirm. Absent a clear violation of due process, the rule concerning the admissibility of confessions has always been treated by this court according to principles of evidence, and not as a tool for the accomplishment of collateral purposes, such as control of police procedures. We should adhere to the rule that a confession given during illegal detention in the absence of counsel, found by the jury and this court to be voluntary, is admissible in evidence.

In a recent case in which the defendant had retained counsel before he was arrested, the Supreme Court of Illinois decided that the defendant was not deprived of due process through the refusal of the police to admit the lawyer and rejected a plea to bar the use of his confession. (People v. Escobedo, 28 Ill. 2d 41.) As stated by Mr. Justice Traynor in People v. Garner (57 Cal. 2d 135, 162-163): “ The perpetrator of a crime is normally the one who knows most about it, and his confession, voluntarily made, is often the best evidence of his guilt that can be obtained. [Citations.] Only overwhelming social policies can justify the exclusion of such vital evidence. In the case of coerced confessions, the evidence may be unreliable; even if reliable, a free society cannot condone police methods that outrage the rights and dignity of a person whether they include physical brutality or psychological coercion. [Citations.] When a confession is voluntary, however, courts are reluctant to exclude it.” That the admission into evidence of a confession given under circumstances more aggravated than those present here does not violate due process is well established (Crooker v. California, 357 U. S. 433); ££ due process does not always require immediate honoring of a request to obtain one’s own counsel in the hours after arrest ” (p. 441 n.; Cicenia v. Lagay, 357 U. S. 504). The most recent statement of the United States Supreme Court reaffirms the rule that “ ‘ the question in each case is whether the defendant’s will was overborne at the time he confessed,’ Lynumn v. Illinois, 372 U. S. 528, 534. £ In short, the true test of admissibility is that the confession is made freely, voluntarily, and without compulsion or inducement of any sort. ’ ” (Haynes v. Washington, 373 U. S. 503, 513.)

Cases such as People v. Waterman (9 N Y 2d 561) and People v. Meyer (11 N Y 2d 162), cited by the majority, simply found a denial of due process in the violation of the defendant’s clear constitutional right to counsel after the commencement of judicial proceedings against him.

On the evidence before us in this case, the conclusion is inescapable that the confession was the voluntary product of Donovan’s will. No member of this court suggests otherwise. Yet, contrary to universally recognized principles of evidence and the requirements of due process, the majority has held that Donovan’s confession may not be used in evidence against him. We cannot too strongly dissent from the majority’s view of this court’s function in these premises. The Legislature has determined the grounds for exclusion of confessions in section 395 of the Code of Criminal Procedure: ££ A confession of a

defendant, whether in the course of judicial proceeding or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless made upon a stipulation of the district attorney, that he shall not he prosecuted therefor”. As our Chief Judge has said, “No New York court has any such supervisory power over the administration of criminal justice as is exercised by the United States Supreme Court ” (People v. Lane, 10 N Y 2d 347, 360) ; and further, “We simply have no right to keep from jurors evidence of a confession which is in fact voluntary ” (id., p. 360). Although stated in an opinion dissenting on grounds not relevant here, these views of the Chief Judge accurately expressed the policy followed by this court up until now.

In our view, this decision’s unwarranted departure from the clear public policy of New York is pointed up by our long line of cases holding that confessions given during a period of illegal detention are not automatically excluded, but are submitted to the jury under instructions from the court on voluntariness (e.g., People v. Mummiani, 258 N. Y. 394; People v. Elmore, 277 N. Y. 397). This rule has been adhered to despite the view of a minority of our Judges that we should adopt the contrary Federal rule of McNabb v. United States (318 U. S. 332) and Mallory v. United States (354 U. S. 449). (See People v. Lane, 10 N Y 2d 347, supra; People v. Everett, 10 N Y 2d 500.) The majority has nevertheless decided that we must reverse because of the special circumstance that, during the period of illegal detention and prior to defendant’s written confession, an attorney, retained by defendant’s family, sought and was refused admission to consult with his client. Regardless of our disapproval of this misconduct on the part of the police, we ought not assign to it any operative significance of its own in the abstract. As related to the admissibility of evidence, it assumes meaning only insofar as it tends to affect the voluntariness of the confession. In this regard, we do not see how the denial of access to an attorney adds anything to the effect of the illegal detention itself. The detention is not made legal for failure of anyone to insist on access to the defendant; nor is it rendered more illegal because of such demand. It is the lack of counsel which disadvantages a suspect held by the police. This lack may be due to the failure of family or friends to retain a lawyer or it may be due to a refusal to admit into the suspect’s presence a lawyer who has been retained. True, an additional wrong has been done when the police refuse to admit a properly retained lawyer, but to reach a different result in such a case and exclude a voluntary confession is to hold that a defendant with a lawyer has greater rights than one not so favored.

' The majority, faced with our cases rejecting the McNabbMallory rule as a whole, has simply divided it into two parts, the interrogation and the denial of access to the defendant, and singled out the denial of access as an independently operative factor. This, of course, is sheer sleight of mind. Our cases rejecting the Mallory rule have always recognized that the detention foreclosed outside legal advice. To quote from but one leading case: ‘ ‘ The police are guilty of oppression and neglect of duty when they willfully detain a prisoner without arraigning him before a magistrate within a reasonable time. (Code Grim. Pro., § 165.) The conclusion is inescapable that they do this for the purpose of subjecting him to an inquisition impossible thereafter. Until arraignment before a magistrate, he is held incommunicado, without the protection that comes from the advice of counsel or the encouragement derived from the presence of family or friends.” (People v. Mummiani, 258 N. Y. 394, 399-400, supra-, italics in original.) How can it be said, therefore, that this case presents any new element calling for a distinction or departure from our rule that these matters are to be submitted to the jury under proper instructions as to their possible bearing on voluntariness? If illegal detention does not require exclusion of a confession, how can denial of access, itself but a universally recognized incident of illegal detention, work an automatic exclusion? What magic is there in the one that is not present in the other ?

Defendant also relies upon People v. Noble (9 N Y 2d 571), in which we reversed a conviction because (in the opinion of a minority of the court) of a refusal by the District Attorney to fairly respond to the defendant’s inquiry concerning his right to counsel. The refusal, it was reasoned, indicated to the defendant that he had no choice but to speak to the authorities. Once this assumption was made the conclusion easily followed that the statement was not voluntary. It is apparent that even, that reasoning, resting as it did on the impression given the defendant by the District Attorney’s comments, does not touch a case where, as here, the conversation between the police and the lawyer was unknown to the defendant.

Apart from frustrating the historically recognized public interest in full presentation of evidence secured by means not violative of due process, this decision has implications for police investigation far beyond the limits of the facts presented. While here both the denial of access and the giving of the confession occurred during a period of illegal detention, the rule adopted applies as well to denial of access during a period of legal detention. For the court condemns questioning of an accused, absent counsel, after he or his attorney has requested that they be allowed to confer together. Traditionally, the writ of habeas corpus was the measure of counsel’s right to succor a client held by the police; and it did not lie if the suspect were legally detained. Henceforth, we take it, a mere request for admittance to a suspect legally held prior to arraignment will be more efficacious than the classic writ; not for release, of course, but for what matters most — the halting of all interrogation. The court, therefore, does not merely fashion a new remedy for a recognized right, but adds to the armory of rights to be enforced by the new remedy of exclusion.

In our opinion, therefore, the decisions of this court contrary to the McNabb-Mallory rule, so long as this court purports to adhere to them, foreclose any appeal based on the bare assertion that the refusal to admit a lawyer seeking an interview with an illegally detained suspect perforce renders a confession inadmissible.

It is all very well to speak of judicial integrity, cherished rights, fundamental imperatives of fair dealing, and potential police brutality, but it must be remembered that improper police interrogation can be brought to light before a jury of the defendant’s peers without a rule requiring that we exclude from evidence a confession even though voluntary. Is society so orderly, is crime so well under control, that we can indulge ourselves in the luxury of reversing convictions on grounds not touching the question of guilt or innocence or the voluntariness of a defendant’s statements? In the face of the statutory and common-law remedies available to one whose rights have been infringed by the police, and the statutory specification of the grounds for excluding confessions (Code Crim. Pro., § 395), we have no commission to give additional remedies for such infringements at the expense of the security of the society into whose midst the admittedly guilty criminal may be released. For there are rights to security of person and property in every member of the community to be considered when this court abandons voluntariness as the test for admitting into evidence the confession of a defendant. In disagreeing with the majority opinion, however, we must make clear that the divergence does not touch the ethical ideal therein expressed. Considered in the abstract and apart from the society to which it must apply, there is no question but that the right to counsel is to be cherished and that the decision reached clearly throws an additional protective mantle around it. It is only when we consider counterbalancing interests (such as those of the next person who may be molested by the freed criminal) that we must pause before devising all possible rules, far beyond the requirements of due process, to reinforce the criminal defendant’s rights to the limit. In striking the proper balance, it is not amiss to note that this court is not confronted with the police persecutions of a despotic state. It is confronted with the too often impeded efforts of a civil service police force and of a District Attorney elected by the citizens of the community to control the increasing rate of crime.

Yak Voorhis, J.

(dissenting). I concur in the dissent of Judge Burke, and mainly for the reasons which he has stated in his dissenting opinion. The test of admissibility of Donovan’s confession is' its voluntariness, as Judge Burke points out, rather than an absolute rule that in all instances one must have an attorney before being questioned where that occurs before criminal charges have been preferred. Questioning without a lawyer at that early stage may, depending upon the circumstances, have a bearing upon whether the confession of an accused is voluntary.

Here neither of these defendants requested to consult a lawyer. Even before the lawyer came to the police station without Donovan’s knowledge, who is alleged to have been retained by his family to represent him, Donovan had told the police where he had disposed of the fatal weapon and of $900 of the stolen money. Both were found exactly where he stated, and the weapon was established by ballistic experts to have been the gun which fired the bullets that were recovered from the body of the victim. It is not claimed that any right to an attorney, constitutional or otherwise, was infringed up to this point. It is difficult to understand how Donovan could have been prejudiced by anything to which he confessed later in his written confession.

This case differs from People v. Noble (9 N Y 2d 571) in several respects, importantly in that Noble declined to talk when questioned by the police until he had consulted a lawyer, but was told by the police, in effect, that he had to answer their questions anyhow. Noble’s confession, under those circumstances, was held to have been involuntary. There is a large difference between that case and this, where Donovan never asked to consult a lawyer, and, unlike Noble, did not refuse to answer questions until after he had consulted a lawyer. Under the ruling on the present appeal, as it seems to me, a confession would be rendered inadmissible if any person with whom an accused had been associated, not necessarily near or distant relatives, were to show after the event that he had asked a lawyer to go to the police station and give advice if the lawyer were to testify that tie had gone there without being allowed to see the accused. Here, it so happens, it was not testified that the lawyer arrived there until after Donovan had told the police where he had put the lethal weapon and a substantial part of the stolen property. Under the ruling by the majority, if the lawyer had reached the police station first, not only would the oral as well as the subsequent written confession have had to have been excluded, but under the “ fruit of the poison tree ” doctrine adopted in this State by People v. Rodriguez (11 N Y 2d 279), it would not have been possible for the People to introduce into evidence either the lethal weapon or the loot, inasmuch as these were discovered only as a result of the confession.

The rule being laid down contains an additional unfairness, as indicated here by the distinction between Donovan and Mencher. Neither of these defendants asked to consult an attorney. It happened, however, that Donovan had a family or connections who testified that they procured one for him. Mencher had no such background support. Does this rule mean that an accused who has friends or connections is to be preferred, under such circumstances, over one who is alone in the world and who has no one to obtain a lawyer for him? The unfairness is recognized here by the granting of a new trial to Mencher also, on the ground that he was mentioned in Donovan’s confession which was not received against Mencher. If that were really basis for reversal, the courts could not admit confessions or admissions by one defendant which implicate a codefendant, even though they be received only as against the person making them and the jury are so instructed. Yet that is done and sanctioned constantly by the courts, except where the part of the confession implicating a codefendant can be redacted. The actuating reason for reversing as to Mencher, it seems to me, is the unfairness of distinguishing between Donovan and Mencher by allowing Mencher’s confession into evidence against himself, since Mencher, unlike Donovan, had no connections to obtain a lawyer who might have told him to remain silent if he had arrived at the station house before Mencher confessed. The inevitable result of this doctrine, if it be maintained, is to require the police to summon a lawyer before questioning an accused.

I vote to affirm as to both defendants.

Foster, J.

(dissenting). I concur with the opinion of Judge Burke. There is no proof whatever that the confession was involuntary except for the facts of illegal restraint and interrogation, and these matters were submitted to the jury. The rationale of the reversal on the grounds specified seems to me to involve nothing more or less than the proposition that a suspect may not be interrogated by the police without counsel present to advise him to keep silent. Such a policy should not be adopted only in the cases where the suspect, or his family, have means to employ counsel. It should apply to all suspects, and perhaps even to witnesses, whom the police seek to interrogate. This may lead, and it seems to me inevitably so, in all fairness, to the requirement of assigned counsel. Perhaps all confessions in criminal cases are suspect, perhaps their use should be prohibited, but such is not presently the law.

Opinion by Judge Fuld, in which Chief Judge Desmond and Judges Dye and O’Brien concur, the latter in a separate opinion; Judge Burke dissents and votes to affirm in an opinion in which Judges Van Voorhis and Foster concur in separate opinions in each of which the other concurs and in both of which Judge Burke concurs.

Upon reargument: Judgments of conviction reversed, etc. 
      
      . Meneher’s claim that he had personally requested counsel was denied by the police.
     
      
      . The view has been expressed that, despite the Crooher and Cicenia decisions to the contrary, recent Supreme Court eases presage a holding by that court that “ due process now requires the exclusion of any confession obtained in the absence of counsel when a defendant has requested that one be present during the questioning ” (Broeder, Wong Sun v. United States: A Study in Faith and Hope, 42 Neb. L. Rev. 483, 606).
     
      
       Donovan had made an oral confession, testified to by the police without objection, prior to the attorney’s arrival.
     
      
       Designated pursuant to section 2 of article VI of the State Constitution in the place of Scileppi, J., disqualified.'
     