
    The People of the State of New York, Respondent, v. Willie James Robinson and Ernest Jackson, Appellants, and Alphonso Williams, Defendant.
    Argued November 26, 1963;
    decided December 30, 1963.
    
      
      Herald P. Fahringer, Jr., for Ernest Jackson, appellant.
    I. Prosecution’s disclosure to the jury of appellant’s refusal to answer questions at the time of his interrogation by the police was reversible error. (People v. Rutigliano, 261 N. Y. 103; People v. Bianculli, 9 N Y 2d 468; People v. Travato, 309 N. Y. 382; People v. Abel, 298 N. Y. 333; People v. Orgovan, 14 A D 2d 482; People v. McGutcheon, 14 A D 2d 482.) II. The Appellate Division’s direction that the confession of appellant’s codefendant Robinson be redacted to eliminate all references to appellant was erroneously ignored by the Trial Judge. (People v. Jackson, 16 A D 2d 184; People v. Waterman, 9 N Y 2d 561; Delli Paoli v. United States, 352 U. S. 232; People v. Lombard, 4 A D 2d 666.) III. The search of Ernest Jackson’s attic, which produced the alleged murder weapon, was unlawful and unreasonable because Ernest Jackson resided in a private dwelling and its entry was not authorized by a search warrant; the People failed to prove consent to search and on that issue they had the burden of proof, and the search was initiated by exploiting postarraignment admissions adjudicated as illegally obtained. (McDonald v. United States, 335 U. S. 451; United States v. Jeffers, 342 U. S. 48; People v. Cocchiara, 31 Misc 2d 495; People v. Colletti, 33 Misc 2d 195; People v. Porter, 37 Misc 2d 73; People v. Di Biasi, 7 N Y 2d 544; People v. Waterman, 9 N Y 2d 561; People v. Meyer, 14 A D 2d 241; People v. O’Neill, 11 N Y 2d 148; People v. Rodriguez, 11 N Y 2d 279; Wong Sun v. United States, 371 U. S. 471; United States v. Paroutian, 299 F. 2d 486.) IV. The trial court’s error in each of the following instances requires a reversal of the judgment of conviction: (1) A prosecution witness was permitted to testify about Ernest Jackson’s previous incarceration in a penal institution, which testimony branded appellant as a convicted felon in the eyes of the jury. (2) The prosecution was allowed to prove, by affidavit, the unavailability of a prosecution witness, whose testimony was prejudicial to appellant’s defense. Her testimony at the former trial was then read in evidence. (3) The prosecution was permitted to call appellant’s codefendant in the former trial who was required to invoke his privilege against self incrimination in the presence of the jury in the case at bar. The prosecution had reason to believe the witness would not testify before it called him. (Commonwealth v. Blase, 160 Pa. Super. 165; People v. Robinson, 273 N. Y. 438; People v. Marshall, 306 N. Y. 223; People v. Feldman, 296 N. Y. 127; United States v. Tucker, 267 F. 2d 212; People v. Luckman, 254 App. Div. 694; People v. Gibson, 218 N. Y. 70.) V. It was reversible error to receive in evidence appellant’s admissions elicited in the absence of counsel after he had been arraigned. (People v. Davis, 13 N Y 2d 690; Spano v. New York, 4 N Y 2d 256, 360 U. S. 315; People v. Waterman, 9 N Y 2d 561; People v. Meyer, 11 N Y 2d 162.)
    
      Harold J. Boreanaz and John G. Putnam, Jr., for Willie James Bobinson, appellant.
    I. The trial court’s charge contained numerous prejudicial errors. Lateness in the charge caused confusion and error. (People v. Nicoll, 3 A D 2d 64; People v. Wright, 17 A D 2d 151; People v. Corbo, 17 A D 2d 351; People v. Odell, 230 N. Y. 481; People v. Montesanto, 236 N. Y. 396; People v. Buchalter, 289 N. Y. 181; People v. Becker, 210 N. Y. 274; Haley v. Ohio, 332 U. S. 596; Rogers v. Richmond, 365 U. S. 534; Stein v. New York, 346 U. S. 156 ; Turner v. Pennsylvania, 338 U. S. 62; Harris v. South Carolina, 338 U. S. 68; Mallory v. United States, 354 U. S. 449; Sparf & Hansen v. United States, 156 U. S. 51; Payne v. Arkansas, 356 U. S. 560.) II. The court’s charge was inadequate with reference to the necessity that the homicide occur during the commission of, and in furtherance of, the underlying felony. (People v. Marwig, 227 N. Y. 382; People v. Collins, 234 N. Y. 355; People v. Dewey, 18 A D 2d 1125; People v. Walsh, 262 N. Y. 140.) TIT. The summation by the District Attorney was unfair, improper and inflammatory and a motion for a mistrial was improperly denied by the trial court. (People 
      v. Fielding, 158 N. Y. 542; People v. Lovello, 1 N Y 2d 436; People v. Marwig, 227 N. Y. 382; People v. Wright, 17 A D 2d 151; People v. Levan, 295 N. Y. 26; People v. Tassiello, 300 N. Y. 425.) IV. Admission of the alleged confessions of defendant Robinson was improper and in violation of his constitutional rights. (People v. Meyer, 11 N Y 2d 162; Stein v. New York, 346 U. S. 156; Harris v. South Carolina, 338 U. S. 68; People v. Randazzio, 194 N. Y. 147; People v. Leyra, 302 N. Y. 353; People v. Nobel, 9 N Y 2d 571; People v. Steuding, 6 N Y 2d 214; People v. Wallace, 17 A D 2d 981; People v. Foley, 8 N Y 2d 153; People v. Meyer, 14 A D 2d 241,11 N Y 2d 162.) V. The court erred in allowing testimony to be read into evidence from a former trial. (People v. Fish, 125 N. Y. 136; Mattox v. United States, 156 U. S. 237; People v. Rosario, 9 N Y 2d 286; New York; County Nat. Bank v. Herrman, 173 App. Div. 814; Wallach v. Manhattan Ry. Co., 105 App. Div. 422; People v. Spinello, 303 N. Y. 193; People v. Cannizzaro, 1 N Y 2d 167; People v. Cole, 43 N. Y. 508; People v. Gezzo, 307 N. Y. 385; People v. Ramistella, 306 N. Y. 379.)
    
      George R. Blair, District Attorney (Leonard F. Walentynowicz of counsel), for respondent.
    I. The admissions and confession by defendants were properly received into evidence and were properly considered by the trial court in its charge. (Culombe v. Connecticut, 367 U. S. 568; People v. Donovan, 13 N Y 2d 148; People v. Everett, 10 N Y 2d 500; People v. Di Biasi, 7 N Y 2d 544; People v. Waterman, 9 N Y 2d 561; People v. Meyer, 11 N Y 2d 162; People v. Perez, 300 N. Y. 208; Watts v. Indiana, 338 U. S. 49; People v. White, 176 N. Y. 331; People v. Randazzio, 194 N. Y. 147; People v. Leyra, 302 N. Y. 353; People v. Davis, 13 N Y 2d 690; People v. Randall, 9 N Y 2d 413; Stein v. New York, 346 U. S. 156; Rogers v, Richmond, 365 U. S. 534; Delli Paoli v. United States, 352 U. 8. 232.) II. ITo reversible error was committed here by the disclosure to the jury of defendant Jackson’s refusal to be interrogated by the police. (People v. Bianculli, 9 N Y 2d 468; People v. Rutigliano, 261 N. Y. 103.) HI. The evidence obtained as a result of search and seizure was properly admitted. (Mapp v. Ohio, 367 U. S. 643; Wong Sun V. United States, 371 TJ. S. 471; United States V. Paroutian, 299 F, 2d 486.) IV. ITo reversible error was committed in the manner in which the alleged prejudicial testimony of the witnesses Williams and Clanton was handled. V. The court committed no reversible error in the manner in which it permitted the testimony from a former trial to be read into evidence. (New York County Nat. Bank v. Herrman, 173 App. Div. 814; People v. Gezzo, 307 N. Y. 385; People v. Rosario, 9 N Y 2d 286.) VI. The summation of the District Attorney was proper under the circumstances. VII. No reversible error was committed by the trial court in connection with its charge. (People v. Walsh, 262 N. Y. 140.)
   Burke, J.

On April 20, 1959 the defendant, Jackson, shortly after he had been released in the custody of his attorney by the Buffalo, New York, police, was arrested at his home. The next day at about 9:30 a.m. he was arraigned on a vagrancy charge. After being questioned on two separate occasions on the 21st, Jackson was placed in a cell for the night. In the next cell was a man named Bradley who was acquainted with Jackson. During the course of a conversation between the two men, Jackson made damaging statements concerning a robbery and homicide which were admitted at the trial over the objection of defendant’s counsel.

Jackson was arraigned on the charge of murder in the first degree on April 22. Thereafter on the morning of April 23, Bradley pursuant to a plan conceived by the police on the evening of April 21 again engaged Jackson in a conversation which was overheard by the police. These statements of Jackson, although not introduced at the trial, divulged the place where guns had been concealed.

On April 25 the police, without a search warrant, searched the attic of the house where Jackson resided and found the guns concealed in the location mentioned by Jackson to Bradley. According to the testimony of police officers a prior search was conducted on April 21 which led them to believe the guns were not in the attic. It is evident that until they overheard Jackson’s admissions on April 23 they did not know of the hiding-place of the guns.

Defendant Jackson’s conviction rests largely upon the statements and the possession of the guns.

The admission, therefore, by the trial court of such evidence was highly prejudicial to the defendant and constitutes reversible error.

All postarraignment statements made in the absence of counsel are inadmissible. (People v. Meyer, 11 N Y 2d 162; People v. Davis, 13 N Y 2d 690.) Where, as here, the arraignment on a vagrancy charge is merely a sham (People v. Davis, supra) the admissions are excluded because they were made during a period when the detention was merely a pretext for holding the defendant in connection with the investigation of the homicide.

As to the use of the guns unearthed in the attic of the house where Jackson resided, we are compelled by decisions of the United States Supreme Court to apply the rule that, if the evidence to which objection is made was acquired by exploitation of the primary illegality, such evidence must also be excluded. (Wong Sun v. United States, 371 U. S. 471, 488; see, also, Mapp v. Ohio, 367 U. S. 643; Silverthorne Lbr. Co. v. United States, 251 U. S. 385, 392; Nardone v. United States, 308 U. S. 338, 340-341.) The guns were the “fruit” of the inadmissible incriminating statements made to Bradley which led to the search without a warrant. (Cf. People v. Rodriguez, 11 N Y 2d 279, 286; Wong Sun v. United States, 371 U. S. 471, 487 — 488, supra; see United States v. Paroutian, 299 F. 2d, 486 [2d Cir., 1962].) Under the circumstances, it is incumbent upon the District Attorney to show that the location of the guns was discovered through a source untainted by the admissions. Instead, the record reflects that, prior to the making of these admissions, the police had not found the guns in the attic, which they had searched, they had made no further plans to search the attic again, the successful search without a warrant did not take place until after the admissions were made, and use was made of the admissions in locating the exact hiding place.

Since there is to be a new trial, it is unnecessary to dwell upon other errors which deprived the defendants of a fair trial, as simple references will suffice. Although this court has repeatedly held that the silence of a defendant cannot be disclosed to a jury (People v. Bianculli, 9 N Y 2d 468; People v. Travata, 309 N. Y. 382, 386; People v. Rutigliano, 261 N. Y. 103, 107; People v. Abel, 298 N. Y. 333), the trial court allowed the prosecution over objection to make several references to Jackson’s refusal to answer the questions of the police. Upon the retrial, we assume, the trial court will redact the confession of Robinson so as to eliminate all reference to Jackson, properly charge the jury on the burden of proof as to the voluntariness of the alleged confession given by Robinson, keep the prosecutor’s summation within bounds and take adequate measures to safeguard the defendants from prejudice when testimony from previous trials is read.

Where, as here, the codefendant Robinson was, charged with acting in concert with Jackson and the prejudice engendered by admission of tainted evidence and the unseemly summation necessarily affected both defendants, there must also be a reversal of Robinson’s conviction in the interests of justice.

The judgments of conviction should be reversed, and a new trial ordered.

Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis, Foster and Soileppi concur.

Judgments of conviction reversed, etc.  