
    The People of the State of New York, Respondent, v. Marion Don Stanley, Alias Laurence M. Whittaker, Appellant.
    Argued October 14, 1964;
    decided November 25, 1964.
    
      
      Millard J, Noonan for appellant.
    Alleged admissions of appellant were improperly admitted into evidence. (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. Wallace, 17 A D 2d 981; People v. Donovan, 13 N Y 2d 148; People v. Robinson, 13 N Y 2d 296.)
    
      Frank S. Hogan, District Attorney (Alan Frederick Leibowitz and H. Rickard Uviller of counsel), for respondent.
    The admissions of defendant were properly received in evidence. (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. Donovan, 13 N Y 2d 148; People v. Robinson, 13 N Y 2d 296; People v. Wallace, 17 A D 2d 981; Ponzi v. Fessenden, 258 U. S. 254; Hebert v. Louisiana, 272 U. S. 312; Bartkus v. Illinois, 359 U. S. 121; Rea v. United States, 350 U. S. 214; Cleary v. Bolger, 371 U. S. 392; People v. Adamchesky, 184 Misc. 769.)
   Fuld, J.

Charged with stealing money from two men, named Haag and Sehermond, the appellant stands convicted of grand larceny in the first degree (Penal Law, §§ 1290,1294). Prior to his indictment by a Hew York County Grand Jury for that crime, the appellant was arraigned before a United States Commissioner and thereafter indicted, under a Federal statute (U. S. Code, tit. 18, § 2314), by a Federal Grand Jury for the crime of inducing Schermond to transport money across state lines in order to defraud him of that money. He entered a plea of not guilty to that indictment and sometime later was released on bail. He was immediately taken into custody by New York City police officers and questioned by them in the absence of counsel. Certain statements which he made were received in evidence upon the trial below and, upon this appeal, it is the appellant’s sole contention that he is entitled to a reversal on the strength of our decisions holding that statements made by a defendant “after arraignment” or “after indictment without counsel are inadmissible We limit ourselves, therefore, to a consideration of that argument, to the applicability of those decisions to the present situation, and refrain from considering or passing upon the more difficult and far-reaching problem whether a person taken into custody for questioning prior to his arraignment or indictment is entitled to be made aware of his privilege to remain silent and of his right to a lawyer if he desires one. (Cf. Escobedo v. Illinois, 378 U. S. 478; People v. Dorado, 62 Cal. 2d 350.)

We have held that an inculpatory statement made by a defendant after his arraignment or indictment, in the absence of counsel, may not be used .against him on a subsequent trial. (See, e.g., 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.) We were led to such a rule because an arraignment or indictment “ marks the formal commencement of the criminal action against the defendant.” (People v. Waterman, 9 N Y 2d 561, 565, supra.) Consequently, questioning the defendant after such point, in the absence of counsel, “ impinge [s] upon [his] twofold rights to the assistance of counsel and to freedom from testimonial compulsion ” and “contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.” (People v. Waterman, 9 N Y 2d 561, 564-565, supra.)

However, as the language of the cases makes clear, the mere fact that the defendant has been arraigned or indicted on one charge does not prevent law-enforcement officials from interrogating him, in the absence of an attorney, about another and different crime — upon which he has been neither arraigned nor indicted—or render inadmissible a confession or other inculpatory statement obtained as a result of such questioning. (See People v. Weinstein, 11 N Y 2d 1098; People v. Lathan, 12 N Y 2d 822.) The reason is clear. With regard to the second crime about which the defendant is questioned, there has not yet been the formal commencement of the criminal action ” against him. (People v. Waterman, 9 N Y 2d 561, 565, supra; see, also, Richardson, Evidence [9th ed., 1964], p. 547.) It would be a different matter, of course, if the first arraignment was a “ sham ”, merely “ a pretext for holding the defendant in connection with the investigation ” of the other crime. (See People v. Robinson, 13 N Y 2d 296, 301; People v. Davis, 13 N Y 2d 690.)

Since, in the case before us, there is no doubt about the bona fides of the Federal proceedings, it follows that the New York City police officers were not inhibited by our decisions in cases dealing with post-arraignment and post-indictment statements from questioning the appellant about a crime under the laws of the State of New York.

The judgment appealed from should be affirmed.

Chief Judge Desmond (dissenting).

I dissent. These admissions against interest were inadmissible in evidence because of facts, or sets of facts, which necessarily bring the case within our several decisions forbidding receipt against a defendant of post-arraignment confessions (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). Those additional facts are: first, the F. B. I. investigation and the Federal indictment were concerned with transporting money, an element or ingredient of the same alleged money theft charged in the present State prosecution; second, after the F. B. I. arrest and before the Federal indictment New York City detectives questioned defendant at the F. B. I. office; third, the city detectives arrested defendant on the State charge at the United States Commissioner’s office after defendant’s arraignment there on the Federal indictment; fourth, the incriminating statements were taken from defendant, unrepresented by counsel, after that Federal arraignment and necessarily amounted to admissions of guilt as to both the interwoven Federal and State accusations,

The exclusion by the courts of post-arraignment admissions does not result from application of a mere formula fixing an arbitrary point of time after which confessions may not be exacted from an accused person. They are excluded from evidence because they have been taken after prosecution has commenced and so amount to testimonial compulsion ” (People v. Di Biasi, 7 N Y 2d 544, 551, supra), coming as they do after the “ commencement of the criminal action against the defendant ” (People v. Waterman, 9 N Y 2d 561, 565, supra).

Here the co-operation of Federal and State officers in prosecuting the same alleged criminal activity had proceeded to a point where there had been an actual arraignment on the Federal indictment. The case for reversal here is, accordingly, stronger than in People v. Davis (13 N Y 2d 690; see People v. Robinson, 13 N Y 2d 296). Another relevant decision is People v. Wallace (17 A D 2d 981) holding inadmissible defendant’s incriminating statements made to a fire marshal before he was ever arraigned at all.

Since the Di Biasi, Waterman and Meyer decisions (supra) express part of the protections afforded citizens against questioning which contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crimes” (People v. Waterman, 9 N Y 2d 561, 564-565, supra), no reasonable distinction can be made between those cases and this one. In all the eases including the present one the vice of the questioning is that it continued after the defendant had been cast in the role of an accused.

I would reverse and order a new trial.

Judges Dye, Van Voorhis, Burke, Scileppi and Bergan concur with Judge Fuld ; Chief Judge Desmond dissents in a separate opinion.

Judgment affirmed.  