
    The People of the State of New York, Respondent, v. Carmine Vitagliano, Appellant.
    Argued February 10, 1965;
    decided April 15, 1965.
    
      
      Joseph Lonardo for appellant.
    I. The refusal to grant Yitagliano’s motion for a separate trial, the refusal to delete references to Yitagliano in Anfossi’s signed confession, and the prosecutor’s prejudicial use of that confession in cross-examining Yitagliano and in summation denied a fair trial and due process. (People v. Fisher, 249 N. Y. 419; People v. Snyder, 246 N. Y. 491; People v. Gaskill, 132 Misc. 318; People v. Wargo, 149 Misc. 461; People v. Welch, 16 A D 2d 554; People v. Feolo, 282 N. Y. 276; United States ex rel. Headley v. Fay, 209 F. Supp. 153; People v. Robinson, 16 A D 2d 184; People v. Robinson, 13 N Y 2d 296; People v. Adams, 16 A D 2d 1034; Greenwell v. United States, 336 F. 2d 962; People v. Copeland, 12 A D 2d 942.) II. Appellant’s statement is the total proof to connect him as a particeps criminis. It consists of a mere group of subordinate facts, inconclusive of guilt, and therefore is not a confession. There is no corroboration of the criminal fact to which the statement relates, that is, the driving by appellant. Consequently, it was error to deny motions to dismiss and for a directed verdict, and to submit the statement as a “confession” sufficient to convict. Therefore, guilt is not established beyond a reasonable doubt as a matter of law. (People v. Zucker, 20 App. Div. 363, 154 N. Y. 770; People v. Swersky, 216 N. Y. 471; People v. Cohen, 223 N. Y. 406; People v. Bretagna, 298 N. Y. 323; People v. Creeden, 281 N. Y. 413; People v. Ledwon, 153 N. Y. 10; People v. Weiss, 290 N. Y. 160; People v. Reilly, 181 App. Div. 522, 224 N. Y. 90.) III. A fair trial and due process demanded by the Fourteenth Amendment were denied on the issue of coercion by the refusal to charge appellant’s request that unnecessary delay in arraignment is forbidden by law, and by the submission to the jury of both voluntariness and truth of the alleged confession. (People v. Alex, 265 N. Y. 192; People v. Snyder, 297 N. Y. 81; People v. Lovello, 1 N Y 2d 436; People v. Lanc, 10 N Y 2d 347; People v. Kelly, 264 App. Div. 14; People v. Kozicky, 275 App. Div. 863; People v. Ruocco, 11 A D 2d 807; Haynes v. Washington, 373 U. S. 503; People v. Bradner, 107 N. Y. 1; People v. McLaughlin, 291 N. Y. 480; People v. Wallens, 297 N. Y. 57; People v. Leavitt, 301 N. Y. 113; Jackson v. Denno, 378 U. S. 368; People v. Loria, 10 N Y 2d 368; People v. Huntley, 15 N Y 2d 72.) IV. The procuring of appellant’s statement, and its reception in evidence over objection, violated Ms rights against self incrimination and to the assistance of counsel. This rendered the statement involuntary, as a matter of law, and inadmissible. (Escobedo v. Illinois, 378 U. S. 478; Carnley v. Cochran, 369 U. S. 506; People v. Donovan, 13 N Y 2d 148.) V. The gun produced by the invasion of Wright’s home, and held below as ‘ ‘ inadmissible ’ ’ against him, was tainted evidence and was equally inadmissible against Vitagliano over his objection by operation of the exclusionary rule under the Fourth Amendment. Reversal as to Vitagliano is, therefore, required for violation of his rights under the rule and also in the interests of justice. (People v. Friola, 11 N Y 2d 157; People v. Estrada, 44 Misc 2d 452.)
    
      Frank D. O’Connor, District Attorney (Eugene Feldman of counsel), for respondent.
    I. Appellant’s motion for a separate trial was properly denied. (People v. Doran, 246 N. Y. 409; People v. Snyder, 246 N. Y. 491; People v. Robinson, 13 N Y 2d 296; People v. Lombard, 4 A D 2d 666; People v. Adams, 16 A D 2d 1034; People v. Lee, 4 A D 2d 770; People v. Domenico, 204 App. Div. 754; People v. Dziobecki, 3 A D 2d 493; People v. Carborano, 301 N. Y. 39; People v. Floyd, 13 N Y 2d 820; Stein v. New York, 346 U. S. 156.) II. Appellant’s guilt was proven beyond a reasonable doubt. (Smith v. United States, 348 U. S. 147; People v. Ogle, 104 N. Y. 511; People v. Kress, 284 N. Y. 452; People v. Swersky, 216 N. Y. 471; People v. Patrick, 182 N. Y. 131; People v. Zucker, 20 App. Div. 363; People v. Cuozzo, 292 N. Y. 85; People v. Badgley, 16 Wend. 53; People v. Reddy, 261 N. Y. 479; People v. Fiorentino, 197 N. Y. 560; People v. Atlas, 183 App. Div. 595, 230 N. Y. 629; People v. Gaimari, 176 N. Y. 84; People v. Lytton, 257 N. Y. 310; People v. Becker, 215 N. Y. 126.) III. There was no denial of the fair trial based upon the issue of coercion. (People v. Alex, 265 N. Y. 192; 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; People v. Mummiani, 258 N. Y. 394; Haynes v. Washington, 373 U. S. 503; Jackson v. Denno, 378 U. S. 368; People v. Huntley, 15 N Y 2d 72.) IV. The statements obtained from appellant were not obtained in violation of any of appellant’s constitutional rights. (People v. Donovan, 13 N Y 2d 148; Escobedo v. Illinois, 378 U. S. 478; People v. Leyra, 302 N. Y. 353; People v. Catalfano, 284 App. Div. 569.) V. There was no basis for reversal of the conviction against appellant based upon the admissibility of the gun during the trial below. (Wong Sun v. United States, 371 U. S. 471; Smith v. United States, 348 U. S. 147; Opper v. United States, 348 U. S. 84; People v. Manzi, 38 Misc 2d 114; People v. Entrialgo, 19 A D 2d 509; People v. Lombardi, 13 N Y 2d 1014; Nardone v. United States, 308 U. S. 338; People v. Estrada, 44 Misc 2d 452; People v. Feldman Lbr. Co., 243 App. Div. 817; People v. Friola, 11 N Y 2d 157; People v. Moore, 11 N Y 2d 271; People v. Yarmosh, 11 N Y 2d 397.)
   Van Voorhis, J.

A close question of fact was presented concerning the identity of appellant as the driver of the automobile which took his alleged accomplices, Anfossi and Wright, to the scene of the crime, and drove them away afterwards. A confession of Anfossi was read into evidence, over the objection of counsel for appellant, which implicated him as the driver of the automobile. At the time of its admission, appellant’s counsel asked the court to delete any references made in the statement by Anfossi which implicated appellant, nothwithstanding which Anfossi’s entire confession was received in evidence.

Where it is not possible to segregate the implication of a codefendant in a confession, for the reason that the admission of guilt is so interrelated in the involvement of the accomplice as to render it impossible for practical purposes to separate them, there is no alternative but to receive the confession and then for the court to instruct the jury to consider it only as against the one who has confessed, disregarding the implication of anyone else in the commission of the crime. Such an instruction is not a perfect solution to the problem, inasmuch as it is difficult to eliminate from the minds of the jurors the implication of the codefendant, but. it is the best that can be done under the circumstances. Here there was no abuse of discretion in ordering these defendants to be tried together, but where it is possible, as here, to separate the portions of the confession in which the confessor admits his own guilt from his involvement of another, it has been held that the confession should be redacted by eliminating the portion implicating the codefendant (People v. Robinson, 13 N Y 2d 296; People v. Robinson, 16 A D 2d 184; People v. Lombard, 4 A D 2d 666; People v. Lee, 4 A D 2d 770). In the present instance, Anfossi’s implication of appellant in his confession (Exhibit 10) was in a separate paragraph from his admission of his own guilt. It was, therefore, error to admit the entire confession, over objection by appellant’s counsel, without deleting the easily severable portion which charged appellant with being an accomplice. The error was accentuated by the reference to this inadmissible portion of the confession in the summation of the prosecuting officer who argued to the jury that it supported the People’s contention that appellant was involved in the commission of the crime.

It was also error for the trial court to have refused to charge the jury that, where appellant had been confined for 34 hours before arraignment, unwarranted delay should be considered by the jury in determining whether such confession or admission was voluntarily obtained.

We have examined the other points raised and find no merit in them.

For the reasons stated the judgment of conviction should be reversed and a new trial ordered at which the Jackson v. Denno (378 U. S. 368) procedure will, of course, be followed (see People v. Huntley, 15 N Y 2d 72).

Chief Judge Desmond and Judges Dye, Fuld, Burke, Scileppi and Bergan concur.

Judgment reversed and a new trial ordered.  