
    The People of the State of New York, Respondent, v. Edward Junior Lane, Defendant, and Theodore McNeil, Clarence Lee Sloan and John Henry Williams, Appellants.
    Argued June 7, 1961;
    reargued October 3, 1961;
    decided November 30, 1961.
    
      James P. Cassidy for Theodore McNeil, appellant.
    I. In the court’s main charge, reversible error was committed in charging that the statements given by defendant McNeil to the police and District Attorney were sufficient for conviction, if found to be voluntary and if it was found also that Claude Quick was criminally killed on the date in question. (People v. Kingston, 8 N Y 2d 384.) II. The court did not permit the jury to consider McNeil’s defense of withdrawal from the underlying felony by its refusal to charge as requested on two occasions. (People v. Nichols, 230 N. Y. 221.) III. Unjustifiable prejudice was created against McNeil by the summation of the District Attorney. (People v. Lovello, 1 N Y 2d 436; People v. Reade, 1 N Y 2d 459; People v. Marks, 6 N Y 2d 67; People v. Leavitt, 301 N. Y. 113.) IV. So far as McNeil is concerned, the People failed to prove that the killing was committed by a person engaged in the commission of a felony or in an attempt to commit a felony, and the motion to dismiss at the end of the People’s case should have been granted. (People v. Ryan, 263 N. Y. 298; People v. Collins, 234 N. Y. 355; People v. Sobieskoda, 235 N. Y. 411; People v. Wood, 8 N Y 2d 48.) V. Reversible error was committed by the court in failing to exclude statements made by McNeil to the police and to the District Attorney’s office as involuntary. (Blackburn v. Alabama, 361 U. S. 199.) VI. It was error not to have charged the various degrees of homicide to the jury with respect, at least, to the actual gunman. (People v. Cummings, 274 N. Y. 336; People v. Koerber, 244 N. Y. 147.) VII. It was error for the trial court to refuse defendant McNeil a separate trial.
    On reargument: I. The revolver, People’s exhibit 3, should not have been received in evidence. (Mapp v. Ohio, 367 U. S. 643; United States v. Rabinowitz, 339 U. S. 56; People v. Esposito, 118 Misc. 867; Rios v. United States, 364 U. S. 253; Johnson v. United States, 333 U. S. 10; United States v. Di Re, 332 U. S. 581; Byars v. United States, 273 U. S. 28; Henry v. United States, 361 U. S. 98; Jones v. United States, 362 U. S. 257.) II. The testimony of the ballistics expert and the statements taken from McNeil by the police and District Attorney were the fruit of the poisonous tree of illegally obtained evidence and should have been excluded from evidence. (Silverthorne Lbr. Co. v. United States, 251 U. S. 385; Nardone v. United States, 308 U. S. 338.) III. The statements taken from McNeil by the police and District Attorney should not have been admitted in evidence. (People v. Di Biasi, 7 N Y 2d 544; 
      People v. Waterman, 9 N Y 2d 561; People v. Noble, 9 N Y 2d 571.) IV. The cumulative effect of the errors pointed out in the main brief on this appeal require the reversal of the conviction as to appellant McNeil.
    
      Lazarus I. Levine for Clarence Lee Sloan, appellant.
    I. The trial court erroneously omitted to charge the various lesser degrees of homicide. The evidence tending to prove that defendants were intoxicated mandated a charge as to the lesser degrees of homicide. (People v. Koerber, 244 N. Y. 147; People v. Cummings, 274 N. Y. 336.) II. The evidence tending to prove that the felony had terminated when the fatal shots were fired mandated a charge as to the lesser degrees of homicide. (People v. Ryan, 263 N. Y. 298; People v. Moran, 246 N. Y. 100.) III. Sloan’s statements were procured by force, brutality and coercion and their admission into evidence violated the due process clauses of the Constitution of the United States (Fourteenth Amendment) and the Constitution of the State of New York (art. I, § 6), and the provisions of section 395 of the Code of Criminal Procedure. (People v. Vargas, 7 N Y 2d 555; Spano v. New York, 360 U. S. 315.) IV. The statements by Sloan were not confessions and it therefore was error for the court to charge that the statements, if voluntarily made, together with other proof that the crime was committed, would be sufficient to convict. V. The District’s Attorney conduct deprived defendant Sloan of a fair trial. (People v. Jackson, 7 N Y 2d 142; People v. Lovello, 1 N Y 2d 436; People v. Tassiello, 300 N. Y. 425; People v. Levan, 295 N. Y. 26; People v. Miller, 6 N Y 2d 152; People v. Hicks, 287 N. Y. 165; People v. Marks, 6 N Y 2d 67.) VI. The trial court’s refusal to permit evidence as to brutality practiced on the witness McNair was error. The District Attorney’s unfair comment in summation that McNair was not beaten compounded the error. VII. The District Attorney improperly referred to the failure of defendant Sloan to take the stand. (People v. Leavitt, 301 N. Y. 113.) VIII. The testimony of the accomplices Lane and Williams was not corroborated by other independent evidence tending to connect Sloan with the commission of the crime. IX. Sloan was deprived of a fair trial by various errors committed prior to and during the course of the trial. The motions for severances improperly were denied. X. The motion for a change of venue improperly was denied. XI. The trial jury was not chosen pursuant to statutory requirements. XIII. Sloan’s pretrial motion to inspect his statements improperly was denied.
    On reargument: I. The search of the McNair automobile was illegal and the evidence thereby obtained was inadmissible in the courts of this State. (Mapp v. Ohio, 367 U. S. 643; People v. Jung Hing, 212 N. Y. 393; Rios v. United States, 364 U. S. 253; Jones v. United States, 362 U. S. 257; United States v. Di Re, 332 U. S. 581; Johnson v. United States, 333 U. S. 10.) II. Sloan was unlawfully removed from his cell and questioned subsequent to arraignment on the gun charge. His statements thus were unlawfully obtained. (People v. Di Biasi, 7 N Y 2d 544; People v. Waterman, 9 N Y 2d 561; People v. Steuding, 6 N Y 2d 214.) III. A new trial is mandated by the cumulative effect of errors discussed in the main brief. (People v. Feolo, 282 N. Y. 276; People v. Fisher, 249 N. Y. 419.)
    
      Solomon A. Klein for John Henry Williams, appellant.
    I. Defendant’s right to a fair and impartial evaluation of his defense was irretrievably prejudiced when the District Attorney persisted in conveying to the jury, without any basis whatever, that defendant’s witness, Mrs. Sulner, (a) was the daughter of an expert who “ testified for the Hungarian Government against Cardinal Mindszenty ”, (b) was herself a witness against many Hungarian people who “ lost their land ”, and (c) was rejected in American courts as unworthy of belief; prevailed upon the court to strike her denial that either she or any of her relatives ever testified against Cardinal Mindszenty; and offered his personal integrity, time and again, as support for the credibility of the police. (Krulewitch v. United States, 336 U. S. 440; People v. Robinson, 273 N. Y. 438; Toomey v. Farley, 2 N Y 2d 71; People v. Malkin, 250 N. Y. 185; People v. Slover, 232 N. Y. 264; People v. Wolf, 183 N. Y. 464; People v. Lovello, 1 N Y 2d 436; People v. Jackson, 7 N Y 2d 142.) II. It was reversible error for the court to instruct the jury that they could render a verdict of guilty upon defendants’ pretrial statements and proof of the corpus delicti. (People v. Kingston, 8 N Y 2d 384; People v. Bretagna, 298 N. Y. 323; People v. White, 11 A D 2d 742.)
    On reargument: The decision in Mapp v. Ohio (367 U. S. 643) —'holding that “all evidence obtained by search and seizure in violation of the Constitution is, by that same authority, inadmissible in a state court ” — requires a new trial to be granted in the interests of justice. (People v. Defore, 242 N. Y. 13; Wolf v. Colorado, 338 U. S. 25; People v. Finkelstein, 9 NY 2d 342; People v. Hernandez, 10 N Y 2d 774; Patterson v. Alabama, 294 U. S. 600; Carroll v. United States, 267 U. S. 132; Henry v. United States, 361 U. S. 98; Williams v. United States, 263 F. 2d 487; Judd v. United States, 190 F. 2d 649; People v. Martin, 45 Cal. 2d 755; People v. Rudish, 294 N. Y. 500; McDonald v. United States, 335 U. S. 451.)
    
      Abraham Isseks, District Attorney (Angelo J. Ingrassia and Robert M. Devitt of counsel), for respondent.
    I. The guilt of each of the defendants was established beyond a reasonable doubt. (People v. Harris, 306 N. Y. 345; People v. Michalow, 229 N. Y. 325; People v. Ryan, 263 N. Y. 298; People v. Lunse, 278 NT. Y. 303; People v. Nichols, 230 N. Y. 221.) II. The statements of defendants were properly received in evidence. (People v. Malinski, 292 N. Y. 360; People v. Mleczko, 298 N. Y. 153; People v. Fernandez, 301 N. Y. 302; People v. Vargas, 7 N Y 2d 555.) III. The trial court properly submitted the case to the jury as murder in the first degree and properly omitted to charge the lesser degrees of homicide. (People v. Schleiman, 197 N. Y. 383; People v. Seiler, 246 N. Y. 262; People v. Martone, 256 N. Y. 395; People v. Lunse, 278 N. Y. 303; People v. Mussenden, 308 N. Y. 558.) IV. The charge of the trial court with respect to the statements of defendants and with respect to intoxication was proper. (People v. Kingston, 8 N Y 2d 384.) V. The comments of the District Attorney were proper and did not constitute error. (People v. Reade, 1 N Y 2d 459; People v. Lovello, 1 N Y 2d 436; People v. Doody, 172 N. Y. 165.) VI. The testimony of the codefendants Lane and Williams, accomplices as a matter of law, was amply corroborated. (People v. Weiss, 7 N Y 2d 139; People v. Reddy, 261 N. Y. 479; People v. Dixon, 231 N. Y. 111; People v. Plath, 100 N. Y. 590.) VII. The cross-examination of the witness Hannah Sulner by the District Attorney was proper. VIII. The trial court properly denied the motions of defendants for a severance.
    On reargument: I. Defendants, by failing to raise the question as to an alleged illegal search and seizure prior to trial or during the trial, have waived their rights under the Fourth Amendment of the United States Constitution. (Mapp v. Ohio, 367 U. S. 643; United States v. Di Re, 159 F. 2d 818, 332 U. S. 581; Jones v. United States, 362 U. S. 257; Brinegar v. United States, 338 U. S. 160; Segurola v. United States, 275 U. S. 106; Jordan v. United States, 254 F. 2d 710; United States v. Sheba Bracelets, 248 F. 2d 134; United States v. Sferas, 210 F. 2d 69; United States v. Herskovitz, 209 F. 2d 881.) II. The search of the McNair automobile was not illegal and the evidence thereby obtained was properly admitted into evidence. (United States v. Rabinowitz, 339 U. S. 56.) III. The decision of the Supreme Court of the United States in Mapp v. Ohio (367 U. S. 643) has no applicability whatsoever to defendant Williams. (Agnello v. United States, 269 U. S. 20.) IV. The statements of defendants were properly admitted in evidence. (People v. Vargas, 7 N Y 2d 555; People v. Di Biasi, 7 N Y 2d 544; People v. Waterman, 9 N Y 2d 561.) V. The testimony of the ballistics expert was properly admitted in evidence.
   Burke, J.

The judgments convicting defendants of felony murder and sentencing them to death must be reversed and new trials ordered.

The most substantial errors raised by appellants concern the admissibility of their confessions, nature of the search resulting in discovery of the revolver, sufficiency of evidence corroborating accomplice testimony, and propriety of actions of the District Attorney.

We hold that no error was committed in submitting to the jury, under proper instructions, the voluntary nature of the confessions, although obtained after removal from the county jail, and during a delay in arraignment (Rogers v. Richmond, 365 U. S. 534; Stein v. New York, 346 U. S. 156, 187-188). Admissibility of confessions is a matter of State procedure (Rogers v. Richmond, supra, p. 543). Nothing in Mapp v. Ohio (367 U. S. 643) is to the contrary.

It is evident that Mapp does not bar the admission, as evidence, of the revolver found in McNair’s car, unless it was seized by an unreasonable search, for “ It is [only] unreasonable searches that are prohibited by the Fourth Amendment.” (United States v. Rabinowitz, 339 U. S. 56, 60; Carroll v. United States, 267 U. S. 132,147). A search incident to a lawful arrest is itself lawful (People v. Defore, 242 N. Y. 13, 18; People v. Chiagles, 237 N. Y. 193; Carroll v. United States, supra) and, regardless of the character of the arrest, a search is legal if there is consent thereto.

The investigation conducted in this case meets both these tests.

“A peace officer may, without a warrant, arrest a person, ® * * [w]hen a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it ” (Code Grim. Pro., § 177).

The classic statement of the meaning of probable, or reasonable, cause is that of Chief Justice Marshall in Locke v. United States (7 Crunch [11 U. S.] 339, 348): “It may be added, that the term 1 probable cause,’ according to its usual acceptation, means less than evidence which would justify condemnation. * * * It imports a seizure made under circumstances which warrant suspicion.” (See, also, Henry v. United States, 361 U. S. 98, 102; Brinegar v. United States, 338 U. S. 160, 175; Carroll v. United States, supra, p. 162; Dumbra v. United States, 268 U. S. 435.)

It is conceded that the arrest took place at the time that Sergeant Decker and Officer Cerone approached the car with guns drawn and ordered the two occupants out (see Henry v. United States, supra, p. 103; Code Crim. Pro., §§ 167, 171). The testimony of decedent’s wife, Sergeant Gallagher and Officer Cerone shows that the arresting officers had “ reasonable cause for believing the person to be arrested to have committed ” the felony (Code Grim. Pro., § 177). The arrest, therefore, being lawful, the incidental search was also permissible.

Furthermore we find the search of the automobile was conducted with the consent of the owner, McNair. Such acquiescence is binding on the occupants, for “ [t]he immunity from unreasonable searches and seizures being personal, one cannot object to the searching of another’s premises or property if the latter consents to the search, even though property is found, for the possession of which defendant is subsequently prosecuted.” (4 Wharton’s Criminal Law and Procedure, p. 215).

Defendants’ contention that there is insufficient evidence in the record to corroborate the accomplice testimony given by Lane and Williams is contrary to the facts. Such proof is clearly found in testimony that McNeil and Sloan were arrested while seated in a car in which the murder weapon was found, and further that of the witness Kirby as to the presence of all of the defendants together in an apartment both before and after the killing.

However, when the District Attorney, in spite of objections, referred in his summation to the absence of brutal treatment of McNair, reversible error was committed. The testimony of this witness, which had been excluded as a result of the District Attorney’s objection, was relevant, and could have been allowed on the issues of credibility and coercion. A common pattern of mistreatment of all of the suspects held in connection with the commission of the crime was pertinent to a particularly critical conflict in the evidence. It was, therefore, clearly prejudicial to the defendants for the District Attorney, after succeeding in preventing testimony on that subject by McNair, to argue that McNair was not beaten, and urge that, therefore, the jury should find the others similarly treated. Such conduct merely served to illustrate the importance attached by all parties to that testimony. Hence the reference by the District Attorney to the nonexistent evidence constitutes error requiring our reversal.

A reversal is also dictated by the cumulative effects of the improprieties committed on cross-examination and in the summation. Although taken singly they were not detrimental, considered collectively they were exceedingly harmful (see People v. Carborano, 301 N. Y. 39, 42).

In this view it is not necessary to pass on the other questions. Accordingly, all the judgments appealed from should be reversed, and a new trial ordered.

Fuld, J. (concurring).

I agree that there must be a new trial for the reasons set forth in the court’s opinion, but, contrary to the view held by the majority, I believe that reversible error was also committed by the trial judge’s ruling admitting into evidence the defendants’ confessions.

Upon further deep and considered reflection, I am convinced that our present rule which permits a confession to be used against a defendant, even though obtained in contravention of law, is indefensible. “ Nothing can destroy a government more quickly ”, observed Mr. Justice Clark, writing for the Supreme Court in Mapp v. Ohio (367 U. S. 643, 659), “ than its failure to observe its own laws * * *. As Mr. Justice Brandéis, dissenting, said in Olmstead v. United States, 277 U. S. 438, 485 (1928): ‘ Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. * * * If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy.’” Indeed, Mr. Justice Brandéis went on to say in Olmstead, “ To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal—would bring terrible retribution. ’ ’

In the case before us, the confessions were obtained from the defendants not only while they were being unlawfully detained in violation of the arraignment provisions of our statute (Code Grim. Pro., § 165; Penal Law, § 1844), but also after they had been illegally removed—for what reason does not appear — from the county jail. ***In my view, the imperative of judicial integrity” (Elkins v. United States, 364 U. S. 206, 222; see, also, Cahn, The Sense of Injustice [1949], pp. 116-117), as well as the principle and rationale underlying the decision in Mapp (even though not its holding), condemn the confessions and call for their exclusion from evidence.

As judges of the State’s highest court — ever under the necessity of reconsidering an old and unsatisfactory court-made rule, at variance with concepts of justice and fair dealing (see, e.g., People v. Oakley, 9 N Y 2d 656 [voluntary confession sworn to before judicial officer excluded]; People v. Waterman, 9 N Y 2d 561 [voluntary confession obtained after indictment excluded]; People v. Spitaleri, 9 N Y 2d 168 [withdrawn plea of guilty excluded]; Bing v. Thunig, 2 N Y 2d 656, 667)—we should not uphold confessions procured in violation of law. And, consonant with this, we should read into our prompt arraignment statute (Code Grim. Pro., § 165) the meaning we declined to give it some years ago (see People v. Mummiani, 258 N. Y. 394, 399-400; People v. Alex, 265 N. Y. 192, 194. Cf. McNabb v. United States, 318 U. S. 332; Mallory v. United States, 354 U. S. 449; Rogers v. Richmond, 365 U. S. 534, 540-541) and refuse to accept confessions obtained during the period of unlawful detention.

“ A democratic society, in which respect for the dignity of all men is central,” the Supreme Court declared in a case also dealing with confessions illegally secured,1 ‘ naturally guards against the misuse of the law enforcement process. * * * Legislation * * *, requiring that the police must with reasonable promptness show legal cause for detaining arrested persons, constitutes an important safeguard—not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the ‘ third degree ’ which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental but a sturdy view of law enforcement.” (McNabb v. United States, 318 U. S. 332, 343-344, supra.) In other words, the requirement of prompt arraignment is in large measure prompted by the knowledge that “ The seeds of coercion sprout readily in the earth of illegal detention”. (Hennings, Detentions and Confessions: The Mallory Case, 23 Missouri L. Rev. 25, 31.)

The purposes of the exclusionary rule are, of course, to deter law enforcement officials from violating the very law they are sworn to uphold and to engender respect for constitutional guarantee or statutory mandate “ in the only effectively available way — by removing the incentive to disregard it.” (Elkins v. United States, 364 U. S. 206, 217, supra.) The circumstance that adoption of the rule may make it more difficult for police or prosecutors to gain convictions does not warrant its rejection. What is significant and decisive is that 1 ‘ the imperative of judicial integrity ’ demands that the court should give sanction neither to illegal enforcement of the criminal law nor to the corrosive doctrine that the end justifies the means. (See Beisel, Control over Illegal Enforcement of the Criminal Law [1955], p. 1 passim; Hogan and Snee, The McNabb-Mallory Rule, 47 Georgetown L. J. 1, 30-31.)

Chief Judge Desmond (dissenting).

This case was fairly and carefully tried and the guilt of each appellant was proven beyond any doubt which a reasonable mind could form. I see no ground at all for reversal.

The majority opinion recommends reversal because the trial court excluded testimony that McNair was beaten by the police during their investigation of this homicide and because the District Attorney, so it is said, afterwards improperly told the jury in his summation that McNair had not been subjected to such treatment. But McNair was not a defendant and proof as to the way he was dealt with by the police was quite irrelevant to any issue in this case. It did not become relevant just because the prosecutor made some cryptic side remarks which on close inspection can be construed as a suggestion that, since it had not been shown that McNair was beaten, probably defendants were not beaten, either. If this was an error, it was certainly a small one and should not be magnified into cause for reversal (Cede Orim. Pro., § 542). The law as to confessions was correctly charged to the jury.

Judge Fuld would have us make a brand new rule of evidence for New York State criminal trials, barring proof of any confession, even though voluntary, if made while the person admitting guilt is illegally confined, in violation of our prompt arraignment statutes (Code Grim. Pro., § 165; Penal Law, § 1844). I say that the adoption by us of such a new exclusionary rule of criminal evidence not only is not required by any known principle of constitutional law or natural law or morals but is a procedural innovation beyond our power to make.

It is a basic rule of evidence applicable to trials of every sort of issue that a voluntary admission against interest made to anyone at any time anywhere is evidence against the person making it, of the fact so admitted (Cook v. Barr, 44 N. Y. 156). Since the time, place and circumstances of the admission bear on weight only and not on competency (Reed v. McCord, 160 N. Y. 330, 341), the mere fact that the statement was made while under arrest does not make it inadmissible (People v. Rogers, 18 N. Y. 9; People v. Perez, 300 N. Y. 208). In a criminal prosecution the defendant’s confession is the most acceptable and reliable evidence of guilt, superior in reliability, because of its source and because it is a direct acknowledgment of guilt, to any direct or circumstantial evidence of guilt from other sources (see People v. Bretagna, 298 N. Y. 323, 326, cert. den. 336 U. S. 919; Hopt v. Utah, 110 U. S. 574, 584, 585). Of course, an involuntary confession, because it is not the product of free choice but of fear, duress or promises and so not trustworthy (People v. McMahon, 15 N. Y. 384; People v. Buffom, 214 N. Y. 53, 57; People v. Joyce, 233 N. Y. 61) is proof of nothing (People v. Valletutti, 297 N. Y. 226, 231). But when an accused acting on his own will and judgment admits his guilt, the People of the State are entitled to use that confession as basis for a judgment of guilt. Voluntariness is logically and traditionally the only test (Wilson v. United States, 162 U. S. 613, 623).

That a confession is made during detention and under police questioning does not in law or in common sense make it involuntary (Murphy v. People, 62 N. Y. 590; People v. Perez, 300 N. Y. 208, supra). The fact that it is so made is a circumstance only, a piece of circumstantial evidence which with other circumstances attendant on its making may raise a question of fact as to whether it was in fact voluntary (Stein v. New York, 346 U. S. 156, 187). To protect citizens against prolonged and oppressive questioning our State and most other States (see list in McNabb v. United States, 318 U. S. 332, 342, n. 7) have statutes requiring that the arrested citizen be brought without unnecessary delay before a judicial officer. Such statutes, however, are not part of the law of evidence and do not regulate the admissibility of confessions. Recognizing this, our State like most of the others (except Michigan, see People v. Hamilton, 359 Mich. 410, and Texas, see Texas Code Crim. Pro., arts. 726, 727) has held consistently that violating these statutes in order to get a confession does not result in keeping out of evidence a confession shown to have been in fact voluntary. This sound, logical and not unjust rule has been in force in our State at least since Balbo v. People (80 N. Y. 484 [1880]). Typical of the hundreds of New York cases announcing and applying it are People v. Trybus (219 N. Y. 18); People v. Mummiani (258 N. Y. 394); People v. Alex (265 N. Y. 192) and People v. Elmore (277 N. Y. 397). Numerous similar decisions from many other States are listed at 19 A. L. R. 2d 1331 and in footnotes 38 and 53 of Justice Fbaekeubteb’s opinion in Culombe v. Connecticut (367 U. S. 568, 590, 600). They all in one way or another express the same idea: that the fact of unlawful detention may be some sign of involuntariness but to make that fact alone a bar to testamentary use means that a truly voluntary confession will be kept out without even an inquiry as to its voluntariness.

In 1943 in McNabb v. United States (318 U. S. 332) the Supreme Court, overruling earlier authority (see Wilson v. United States, 162 U. S. 613, supra), “ drew upon its supervisory authority over the administration of * * * criminal justice ” in the Federal system to set up for the Federal courts only “an exclusionary practice” whereby those courts were thenceforth required to exclude from evidence “ any confession 1 made during illegal detention due to failure to carry a prisoner before a committing magistrate’” (Culombe v. Connecticut, 367 U. S. 568, 599, supra). Over and over again the Supreme Court has repeated that this new rule was procedural and evidentiary only, not required by constitutional due process, not made applicable to the States by the Fourteenth Amendment but solely an exercise of the Supreme Court’s power to supervise Federal criminal court practice (Gallegos v. Nebraska, 342 U. S. 55, 63, 64; Brown v. Allen, 344 U. S. 443, 476; Stein v. New York, 346 U. S. 156,187,188, supra; Cicema v. Lag ay, 357 U. S. 504). The court has told us that the purpose in McNabb (supra) was simply to provide and apply a sanction for subdivision (a) of rule 5 of the Federal Buies of Criminal Procedure and that the States are not obliged to accept that particular method. In view of these repeated explanations, I do not see how it can be argued from any general language in Federal decisions that we must or should change our old rule. Surely Mapp v. Ohio (367 U. S. 643) does not require such an alteration. Mapp says that illegality of a search and seizure requires the return and nonuse of the evidence unlawfully taken from the citizen. The Fourth Amendment is, at least as now construed, a constitutionally imposed rule excluding certain evidence, so as to enforce the right of privacy. Nowhere in the Constitution or in any principle I know of is there to he found a similar mandate as to voluntary confessions. This is no Bing v. Thunig (2 N Y 2d 656) or People v. Spitaleri (9 N Y 2d 168) situation where it is within our competence as a court to revise a court-made rule found by experience not to work satisfactorily. In our State the admissibility of confessions and the requirement of and sanctions for prompt arraignment are covered by precise statutes (Code Grim. Pro., §§ 165, 395; Penal Law, § 1844). We know from the records which come before us that these statutes are frequently violated but such knowledge does not license us to add new meanings to them. No New York court has any such supervisory power over the administration of criminal justice as is exercised by the United States Supreme Court. If these well-known and frequently analyzed statutes are to be amended the change must, if we are to adhere to this State’s concept of decisions of governmental power, be made by the Legislature. There is now functioning a Temporary State Commission on Revision of the Penal Law and Criminal Code, set up by the 1961 legislative session.

All criminal law, substantive or procedural, has as its two purposes the protection of the individual citizen from unjust punishment and the protection of the community from unchecked crime. Serious indeed is the withholding by police or prosecutor of any part of this protection from a citizen who is under arrest. But serious, too, is the danger that punishing offending police or prosecutors by barring confessions made during contra-statutory detention will make protection of the community difficult or impossible. We simply have no right to keep from jurors evidence of a confession which is in fact voluntary. A policeman who violates the law as to the time and place of imprisoning citizens should be punished and, if present punishments are insufficient or impractical to enforce, new statutes should be enacted. But the punishment should not take the form of destroying sound, competent evidence.

We as a court have not been thwarted by any lack of power to strike down convictions founded on the use of confessions where such use violates really fundamental rights (see, for instance, People v. Valletutti, 297 N. Y. 226, supra; People v. Leyra, 302 N. Y. 353, 1 N Y 2d 199; People v. Di Biasi, 7 N Y 2d 544; People v. Noble, 9 N Y 2d 571).

The judgments should be affirmed.

Judges Van Voorhis and Foster concur with Judge Burke; Judge Froessel concurs in result only; Judge Fuld concurs for reversal in a separate opinion; Chief Judge Desmond dissents in an opinion in which Judge Dye concurs.

Upon reargument: Judgments of conviction reversed and a new trial ordered. 
      
      . Section 165 of the Code is mandatory in its terms, providing that upon arrest the defendant “ must in all cases he taken before the magistrate without unnecessary delay”. (Italics supplied.) And section 1844 of the Penal Law, punishing wrongful delay in effecting an arraignment, recites that “A public officer 6 ® having arrested any person upon a criminal charge, who wilfully and wrongfully delays to take such person before a magistrate having jurisdiction to take his examination, is guilty of a misdemeanor.”
     
      
      . There is no doubt in the present case of the unlawful detention or the illegal removal. Indeed, the trial court charged the jury, “as a matter of law ”, that the police “ had no legal right to remove ” the defendants from the jail and that “ the delay in arraigning [them] * * * was unreasonable and therefore illegal.”
     
      
      . It is, perhaps, not amiss to point out that involuntary confessions have been held inadmissible “ not because such confessions are unlikely to be true but because the methods used to extract them offend an underlying principle in the enforcement of our criminal law”. (Rogers v. Richmond, 365 U. S. 534, 540-541.)
     