
    The People of the State of New York, Respondent, v. Joseph A. Burwell, Appellant. (Action No. 1.) The People of the State of New York, Appellant, v. James T. McMoore and Willie L. Washington, Respondents. (Action No. 2.)
    Argued March. 3, 1970;
    decided April 16, 1970.
    
      
      Leon B. Polshy and Milton Adler for Joseph A. Burwell, appellant.
    I. The People failed to establish either a prima facie case or guilt of appellant beyond a reasonable doubt upon the charges submitted or the crime upon which a verdict was rendered. (People v. Ligouri, 284 N. Y. 309; People v. Campbell, 1 A D 2d 982; People v. Morhouse, 21 N Y 2d 66; People v. La Belle, 18 N Y 2d 405.) II. The court failed to charge the jury, in response to the request of the jury and appellant, upon the one legal theory which might support the judgment. (People v. Agron, 10 N Y 2d 130; People v. Monaco, 14 N Y 2d 43; People v. May, 9 A D 2d 508.) III. The court improperly denied defense counsel’s request for an assault charge. (People v. Mussenden, 308 N. Y. 558; People v. Malave, 21 N Y 2d 26; People v. Asan, 22 N Y 2d 526.) IV. Appellant Burwell’s rights under the Sixth Amendment were violated by the admission of the unredacted confessions of McMoore and Washington. (People v. Anthony, 24 N Y 2d 696; United States v. Bujese, 378 F. 2d 719; Serio v. United States, 392 U. S. 305, 377 F. 2d 936; La Shine v. United States, 374 F. 2d 285; Santoro v. United State, 392 U. S. 301; Townsend v. Henderson, 405 F. 2d 324; West v. Henderson, 409 F. 2d 95; United States v. Hoffa, 402 F. 2d 380; Hunt v. Connecticut, 392 U. S. 304; Douglas v. Alabama, 380 U. S. 415.) V. The prosecutor improperly commented upon appellant Burwell’s failure to testify and answer for his confession. (People v. McLucas, 15 N Y 2d 167.) VT. Appellant’s lineup identification at the police station after his counsel had been denied access requires exclusion of the identification testimony. (United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263; People v. Noble, 9 N Y 2d 571; People v. Donovan, 13 N Y 2d 148; Miranda v. Arizona, 384 U. S. 436.) VII. If the judgment is affirmed in other respects, appellant is entitled to a hearing upon whether he was denied due process of law by the pretrial lineup and whether the identifying witnesses at trial had the capacity to identify appellant independent of the tainted lineup. (People v. Ballott, 20 N Y 2d 600.)
    
      Louis J. Lefkowitz, Attorney-General (Whitman Knapp and Morton E. Grosz of counsel), for The People, as appellant and respondent.
    I. The holding of Bruton v. United States should not be extended. (Bruton v. United States, 391 U. S. 123; Harrington v. California, 395 U. S. 250.) II. This court, in People v. McNeil, properly declined to extend Bruton to cover a situation where all defendants have admitted their guilt. (People v. McNeil, 24 N Y 2d 550; People v. Ortiz, 25 N Y 2d 863; United States ex rel. Dukes v. Wallack, 414 F. 2d 246; People v. Fisher, 249 N. Y. 419.) III. This court, in People v. Anthony, properly declined to extend Bruton to a situation where the maker of the supposedly prejudicial confession has taken the witness stand. (People v. Anthony, 24 N Y 2d 696; Wallace v. United States, 412 F. 2d 1097; United States v. Marine, 413 F. 2d 214; United States ex rel. Hundley v. Pinto, 413 F. 2d 727.) IV. The charge was adequate and fair. (People v. Mussenden, 308 N. Y. 558; People v. Cohen, 223 N. Y. 406; People v. Hovnanian, 16 A D 2d 818.) V. The prosecutor made no improper comment on Burwell’s failure to testify. VI. The lineup presents no question in this court. (United States v. Wade, 388 U. S. 218; Gilbert v. California, 388 U. S. 263; Stovall v. Denno, 388 U. S. 293; People v. Noble, 9 N Y 2d 571; People v. Donovan, 13 N Y 2d 148; People v. Ballott, 20 N Y 2d 600.)
    
      Malvine Nathanson and Milton Adler for Willie L. Washington, respondent.
    I. The admission into evidence of the confessions of Burwell, who did not testify and was not subject to cross-examination, was reversible error. (People v. McNeil, 24 N Y 2d 550; Harrington v. California, 395 U. S. 250; Chapman v. California, 386 U. S. 18.) II. The trial court erroneously refused to charge the jury on assault in the second degree. (People v. Malave, 21 N Y 2d 26; People v. Mussenden, 308 N. Y. 558; People v. Nicoll, 3 A D 2d 64.) III. The evidence was insufficient to establish appellant Washington’s guilt of manslaughter in the first degree. (People v. Ramos, 20 A D 2d 882; People 
      v. May, 9 A D 2d 508; People v. Lieberman, 3 N Y 2d 649; People v. Monaco, 14 N Y 2d 43.) IV. The pretrial identifications were obtained in violation of due process and tainted the in-court identifications. At the very least, a hearing should be held on taint. (People v. Ballott, 20 N Y 2d 600; People v. Brown, 20 N Y 2d 238.)
    
      Dean C. Rohrer and Milton Adler for James T. McMoore, respondent.
    I. The trial court’s failure to redact the statements of Burwell and Washington by eliminating the inadmissible hearsay portions implicating James McMoore and the prosecutor’s reliance on those portions in his opening and summation, so prejudiced James McMoore that he was denied a fair trial. (People v. Adams, 21 N Y 2d, 397; People v. Vaccaro, 288 N. Y. 170; People v. Byan, 263 N. Y. 298; People v. Kief, 126 N. Y. 661; People v. McQuade, 110 N. Y. 284; Bruton v. United States, 391 U. S. 123; People v. Vitagliano, 15 N Y 2d 360; People v. Pollack, 21 N Y 2d 206; People v. Burrelle, 21 N Y 2d 265; People v. La Belle, 18 N Y 2d 405.) II. The Second Department correctly decided that James McMoore’s conviction should be reversed since he was deprived of his constitutional right to confront and cross-examine Burwell, a witness against him through his extra judicial statement. (People v. Anthony, 24 N Y 2d 696.)
   Per Curiam.

Defendant Burwell, who did not testify, suffered no prejudicial error in the admission of his codefendants ’ confessions, since the confessants testified and were available to Bur-well for cross-examination. The rule in People v. Anthony (24 N Y 2d 696, 702-703) is applicable and determinative.

Nor did defendants. McMoore and Washington suffer prejudicial error in the admission of the several confessions, under limiting instructions. Since all the defendants on trial had separately confessed in substantially identical terms, the rule in People v. McNeil (24 N Y 2d 550, 552-553) is applicable and determinative. Any of the confessed versions of the affray vary only as to the precipitating event, but in common show concerted action. Similarly, given a common shared intent it makes no difference whether McMoore stabbed the victim by direct movement of his arm or that the victim was impaled on the knife held by McMoore when the victim was pushed by a confederate of McMoore.

Apart from the admission of the confessions, a number of errors are urged with respect to the adequacy of the proof and the conduct of the trial. They have been considered but do not merit further discussion.

While no trial incident requires that there be a new trial, a suggestive pre-arraignment lineup requires as to all defendants that the case be remanded for a hearing to determine whether the in-court identifications have an independent basis.

Defendants were arrested in the early hours of December 27, 1962, and questioned during the day. A lineup, viewed by the surviving youths attacked, was held at 2:45 p.m. that afternoon. (51 Misc 2d 269, 272-273.) At this lineup, held approximately one week after the crime, the defendants were placed in a line with four police officers and a civilian who happened to be present in the station house. Burwell was then 19 years old, McMoore, 17, and Washington, 18. The police officers taking part in the lineup were at the time of trial (8% months after the lineup) 27, 35, 39, and 48 years of age. Washington, whom witnesses had first said was bald, appeared in the lineup with a shiny rag on his head.

A second lineup was held ten minutes after the first, and two additional policemen, aged 35 and 39, were added.

Photographs were taken of both lineups and put in evidence by the prosecutor, after the lineups had been disclosed and made an issue by the defense on direct and cross-examination. A comparison of the order of the eight-man lineup with the exhibits in evidence indicates that defendants, the third, sixth, and eighth men in the lineup, as numbered from the left, were quite distinctive, and an identification by suggestion was highly likely.

It is hardly necessary to reach another interesting issue arising from the pre-arraignment lineup of defendants on the day of their arrest, a week after the crime. It involves only defendant Burwell. His attorney had asked to see Burwell before the lineup, but was not allowed access to his client until after the lineup had been conducted. The confrontation occurred prior to June 12, 1967, and, therefore,, was not subject to the prospective rules requiring presence of counsel at post-arraignment lineups announced on that day in United States v. Wade (388 U. S. 218, 236-237); Gilbert v. California (388 U. S. 263, 272), and Stovall v. Denno (388 U. S. 293, 296). Nevertheless, the failure to arrange for the presence at the lineup of a defendant’s lawyer, then seeking access to his client, is suggestive of a violation, in spirit at least, of the principles previously laid down by this court when coupled with the mandates of the Stovall-Wade-Gilbert triology of cases (cf. People v. Noble, 9 N Y 2d 571; People v. Donovan, 13 N Y 2d 148, 152-153).

Because the lineups were improperly suggestive a hearing is necessary to determine whether the lineups influenced the in-court identifications. The in-court identifications were properly admitted only if the prosecution can establish, by clear and convincing evidence, that the in-court identifications were based on observations other than the lineups (see People v. Ballott, 20 N Y 2d 600, 606-607). The issue is particularly significant because victims testified that they were able to see the faces of their assailants only for seconds or at most a minute. Without in-court identifications, evidence of implication of defendants as the assailants depends on the defendants’ confessions, two of which were repudiated.

Accordingly, the Burwell judgment of conviction should be modified to the extent of directing a hearing on the issue of the in-court identification, and, as so modified, affirmed; and the order of the Appellate Division, insofar as it reverses the judgments. of conviction of McMoore and Washington, should be reversed, the judgments of conviction reinstated, and a hearing directed on the issue of the in-court identification.

Chief Judge Fuld (dissenting in part).

I agree with the court that the lineup identifications of the three codefendants were unnecessarily suggestive and that, to the extent their convictions are otherwise valid, there should be a hearing to determine whether the in-court identifications were tainted by the improper lineups. Accordingly, I concur in the court’s decision insofar as it relates to the defendant Burwell. However, since he did not take the stand and his confession contained matter not to be found in the statements of his codefendants McMoore and Washington which tended to incriminate them, I believe that the qualifications upon the Bruton rule [Bruton v. United States, 391 U. S. 123], as set forth in Harrington v. California (395 U. S. 250, 252) and People v. McNeil (24 N Y 2d 550), are not applicable to those codefendants and that the Appellate Division was correct in reversing their convictions and directing a new trial.

Judges Scileppi, Bergan, Breitel, Jasen and Gibson concur in Per curiam, opinion; Chief Judge Fuld dissents in part and votes to affirm in People v. McMoore and Washington in a separate opinion in which Judge Burke concurs.

In People v. Burwell: Judgment modified by directing a hearing on the issue of in-court identification in accordance with the opinion herein, and, as so modified, affirmed.

In People v. McMoore and Washington: Order reversed, judgments of Supreme Court, Kings County, reinstated, and a hearing directed on the issue of in-court identification in accordance with the opinion herein.  