
    The People of the State of New York, Respondent, v. Charlie Mae McQueen, Appellant.
    Argued March 31, 1966;
    reargued September 21, 1966;
    decided October 27, 1966.
    
      Leo F. McGinity for appellant.
    
      
      William Cohn, District Attorney {Henry P. De Vine of counsel), for respondent.
    
      
      Louis J. Lefkowits, Attorney-General (Samuel A. Hirshowits and Barry Mahoney of counsel), amicus curiae.
    
    
      
      Leonard Bubenfeld, District Attorney (Benj. J. Jacobson, James J. Duggan and Francis J. Valentino of counsel), for New York State District Attorneys Association, amicus curies.
    
    
      Isidore Dollinger, District Attorney of Bronx County (Boy Broudny and Peter B. De FiUppi of counsel), amicus curice.
    
   Van Voorhis, J.

The conviction of appellant of murder in the second degree should be affirmed unless its correctness is controlled by Miranda v. Arizona (384 U. S. 436). The disposition of the appeal depends upon whether the prearraignment confessions of appellant and her re-enactment of the crime should have been excluded for the reason that she was not informed before the law enforcement officers started to question her that she need not answer, that whatever she said might be used against her or that she was entitled to counsel and that, if indigent, she was entitled to have counsel assigned, as required by the Miranda decision. Her trial commenced November 9 and was concluded November 25, 1964. It was, therefore, not subject to Miranda v. Arizona (supra, decided June 13, 1966) unless the courts of New York apply Miranda retroactively beyond the requirements of the Federal Constitution (Johnson v. New Jersey, 384 U. S. 719). The Johnson case leaves the State courts free to apply a greater measure of retroactivity to such decisions as Mapp v. Ohio (367 U. S. 643), Griffin v. California (380 U. S. 609) and Miranda v. Arizona (supra) than the Supreme Court has held to be required by the Fourteenth Amendment to the Constitution of the United States in Linkletter v. Walker (381 U. S. 618), Tehan v. Shott (382 U. S. 406) and Johnson v. New Jersey (supra). Before the latter cases were decided by the Supreme Court, we held that Mapp v. Ohio was applicable to cases on direct appeal to this court (People v. Loria, 10 N Y 2d 368) but that it was not to be applied retroactively in postconviction remedies where the appellate process had been exhausted (People v. Muller, 11 N Y 2d 154). For so long as the posteonviction remedies of habeas corpus and coram nobis were restricted to testing the jurisdiction of the sentencing court over the person of the defendant and the crime charged, or to matters which could not be raised on appeal, the distinction which we drew between People v. Loria and People v. Muller imported a large degree of finality to criminal convictions against the changing winds of legal doctrine. The expansion of postconviction remedies, however, by such Federal and State decisions as Jackson v. Denno (378 U. S. 368), Fay v. Noia (372 U. S. 391), Townsend v. Sain (372 U. S. 293), Sanders v. United States (373 U. S. 1), Brown v. Allen (344 U. S. 443) and People v. Huntley (15 N Y 2d 72) would render a large and increasing number of criminal convictions subject to being vacated even though the defendants had been tried and convicted in accordance with the law as it was understood and applied at the time. The past can seldom he reformed in the image of the present, and it is manifest that not every type of conviction can be set aside where the wisdom of the present does not coincide with that of the past. In view of the expansion of postconviction remedies, the distinction between review by habeas corpus or coram nobis and direct appeal has become less meaningful insofar as finality is concerned.

The Supreme Court said in Johnson v. New Jersey (supra) that law enforcement agencies fairly relied on prior decisions, now no longer binding, in obtaining incriminating statements before Escobedo (Escobedo v. Illinois, 378 U. S. 478) and Miranda (supra) respectively were decided, and stated categorically that “ these decisions should apply only to trials begun after the decisions were announced * * * even though the cases may still be on direct appeal ” (384 U. S. 732-733; italics supplied).

We are aware that the convictions of Miranda, Yignera, Westover and Stewart were reversed or their reversal upheld by the Supreme Court, and that, in this respect, the procedure differed from that considered in Great Northern Ry. Co. v. Sunburst Oil & Refining Co. (287 U. S. 358) and in Chief Judge Cardozo’s address to the New York State Bar Association (55 N. Y. State Bar Assn. Rep. 263, 296-297 [1932]) in that there the existing rule was to be followed in the case at bar coupled with an announcement that in the future the rule would be otherwise. It is true that the defendants in the Miranda cases were themselves tried before June 13, 1966, but, at the same time, the Supreme Court denied certiorari in many other cases of apparently similar import. Quite evidently the Supreme Court was considering its function in establishing the law of the land in regard to such situations, and any seeming inequalities which may thereby have resulted to these particular individuals were considered to be of secondary importance. The effect, regardless of the reversal of the convictions of Miranda and the other defendants, was similar to the pronouncement of an edict that those defendants who were tried before June 13, 1966 are not required by the Federal Constitution to be governed by the Miranda ridings. Although this procedure may have been unusual, it is not unprecedented and bears some resemblance to that adopted by the English House of Lords, for instance, in the issuance of the celebrated McNaughten Rules.

We have endeavored to adapt our State, procedures in such matters as nearly as may be to the Federal practice (cf. People v. Huntley, 15 N Y 2d 72, supra), and in applying the changes in the law effectuated by Miranda v. Arizona (supra) there is no reason on account of which we should go beyond what the Supreme Court has required in applying these rules to prior convictions. Anything held to the contrary in People v. Loria (supra) should be regarded as overruled.

If an issue of voluntariness were involved, as in Haynes v. Washington (373 U. S. 503) or any of our previous New York State decisions, we recognize that the omission to give the warnings prescribed by Miranda during the prearraignment custodial interrogation could properly be invoked “ as part of an involuntariness claim” (Johnson v. New Jersey, supra, p. 730; Davis v. North Carolina, 384 U. S. 737). There is no basis in this record, however, for any possible ruling that appellant’s confessions should have been excluded as involuntary. In affirming, the Appellate Division said (24 A D 2d 499): “In our opinion, under the circumstances here, namely: (1) the defendant’s failure to object to the admission of her confessions on the ground that they had been involuntarily made, and (2) the absence from the trial court’s charge of any instruction concerning the issue of the voluntariness of defendant’s confessions, a Jackson-Denno hearing to determine such issue is not required to be held (People v. Huntley, 15 N Y 2d 72, 77; Jackson v. Denno, 378 U. S. 368).”

Not only does the absence of objection preclude review by this court (People v. Friola, 11 N Y 2d 157, 159-160), but also there is no basis in the record for any contention of involuntariness. A brief review of the circumstances makes this clear.

The victim of this homicide was stabbed with a knife on the street outside of a bar and grill in Hempstead, New York, following an altercation inside just before it closed at 3:00 a.m. on November 20, 1960. The body was discovered at about 3:30 a.m:., and suspicion soon attached to appellant who resided with two other women in an apartment three and one-half blocks away. One of these woman testified that appellant admitted to her that she had committed the homicide on returning to the apartment 10 or 15 minutes after the bar had closed, and appellant’s daughter, who saw her the nest morning, testified that appellant told her that “ she cut a man” because “He kicked me.”

Her confession or confessions to the law enforcement officers, the admission of which is alleged to have constituted error, occurred as follows: She was taken to the police station about three hours after discovery of the homicide, and within 5 or 10 minutes confessed to the whole thing. She thereupon voluntarily went with the police officers to her apartment and showed them the knife with which she said that she had stabbed the deceased. She then accompanied the police officers to the scene of the homicide which she re-enacted for their benefit.

Between 9:00 and 9:15 a.m. at police headquarters, on the morning of the homicide, she was again questioned by detectives and her interrogation reduced to a writing which she signed. Soon afterward a question and answer statement of similar purport was taken by an assistant district attorney before her arraignment. She was arraigned at 12:50 p.m. on a charge of first degree murder. Two days later another statement was taken which was excluded by the Trial Judge under People v. Waterman (9 N Y 2d 561).

The motions to suppress the two prearraignment statements which were admitted into evidence were based exclusively on the Escobedo decision (which the Trial Justice held inapplicable in the absence of any request for counsel) and on failure to give the warnings which were afterwards held to be necessary in Miranda. Defense counsel later moved to strike out the two confessions which had been admitted upon the ground that they “were taken in violation of the defendant’s constitutional rights.” The only constitutional rights asserted in the record are those which have been mentioned. It is undisputed that no request was made for counsel as occurred in Escobedo v. Illinois (378 U. S. 478), People v. Noble (9 N Y 2d 571), nor is it contended that an attorney had been retained to represent her as in People v. Donovan (13 N Y 2d 148), People v. Gunner (15 N Y 2d 226). The circumstance that her daughter presented herself at the police station between 10:30 and 11:00 a.m. on the morning of November 20, after appellant’s oral confession had been completed and her first written statement signed, is an insufficient basis, in itself, on which to invoke these decisions (People v. Hocking, 15 N Y 2d 973). Near the end of the trial, to be sure, defense counsel moved a second time to strike from the record these confessions on this ground and on the ground that “ they were secured by fraud and deceit ” — which apparently referred to the circumstance that one of the detectives had told appellant in the beginning that she might as well admit what she had done inasmuch as otherwise the victim, who she had not been told had died, would be likely to identify her. She may not have known, at that time, that he was dead. No contention is made, however, nor is there evidence that any promise or threat was made to appellant, and the law is well settled that in the absence of such factors mere deception is not enough (People v. Caserino, 16 N Y 2d 255, 259). In United States ex rel. Everett v. Murphy (329 F. 2d 68, 70) the court said: “ The deception of Everett as to Finocchiaro’s survival of the attack might be ignored if it stood alone.” Neither is it evidence of involuntariness of her confessions that there is some evidence that appellant was intoxicated. The officers who took her statements said that, although she had been drinking, her answers to their questions were consecutive and clear. It may well be that if there were evidence that the confessions had been compelled or coerced, evidence of intoxication would be relevant in conjunction therewith. Upon the other hand, in the absence of coercion, the jury might apply the ancient maxim in vino veritas. The fact that she had been drinking bore upon the truth or falsity of her statements but was not, in itself, evidence that they were involuntary. The Trial Justice instructed the jury that they were to take into account the fact that she had been drinking as bearing upon the truth of these statements, and he also correctly charged that it was for them to decide whether intoxication (if she was intoxicated) was such as to render her incapable of harboring the special intent required to sustain murder charges. Similar instructions were given with respect to her mental condition, A mistrial had been declared in 1961 when she collapsed during her first trial, and was sent to Mattea-wan on certificates of physicians that in consequence thereof she was incapable of conducting her own defense. The findings were otherwise when she went to trial in 1964, No defense of insanity was interposed, but the jury were instructed that they were to consider her mental condition, whatever it was, when she gave these statements on November 20, 1960 as bearing upon their veracity. This was correct inasmuch as the voluntariness of the confessions was not involved. These circumstances demonstrate that there is no Escobedo question nor any issue of voluntariness presented by this record, and that the sole ground for reversal would be the retroactive application of the ruling in Miranda v. Arizona (supra). Inasmuch as we hold that decision not to be retroactive in its application, in accordance with the decision by the Supreme Court in Johnson v. New Jersey (supra), the judgment appealed from should be affirmed.

Scileppi, J.

(concurring). When the Supreme Court of the United States decided Mapp v. Ohio (367 U. S. 643), there was room for doubt that the decision in People v. Defore (242 N. Y. 13, cert. den. 270 U. S. 657) retained any vigor as a rule of law in cases that had not been terminated either by final appellate review or by passage of time for such review. In People v. Loria (10 N Y 2d 368), we resolved that doubt, holding that the rule announced in Mapp v. Ohio (supra) was to be applied to cases still in the appellate process. As subsequent events proved, we eventually would have been compelled to apply Mapp to pending appeals, if we had not done so voluntarily (see Linkletter v. Walker, 381 U. S. 618, 627). Unlike Mapp, Miranda v. Arizona (384 U. S. 436) and Johnson v. New Jersey (384 U. S. 719) leave no room for doubt about the vitality of our decision in People v. Gunner (15 N Y 2d 226) wherein we said, inter alia, that there was no duty on the part of the police to warn a defendant in custody of his right to counsel and right to remain silent (see People v. Gunner, supra, pp. 232-233). Any doubt about whether this part of the Gunner decision is still good law, at least in pending appeals arising out of cases tried before the decision in Miranda v. Arizona (supra), has, to my satisfaction at least, been resolved by Johnson v. New Jersey (supra).

I have heard no argument that convinces me that we should, as a matter of law, abandon Gunner and substitute therefor a rule we have already rejected and are not compelled to follow, except in futuro.

In these days of increasing disregard of the law, we are under no duty to enlarge needlessly on the already great protections afforded convicted criminals whose plight is of their own unlawful making. Rather, the dictates of public policy, in my view, require us to extend innovations in the criminal law only as far as is absolutely necessary to protect constitutional rights. It seems to me that holdings like Miranda (supra) deserve no further application than is demanded. In Johnson v. New Jersey (supra), the Supreme Court set the standard, and we should meet, but in no way exceed, that standard (see, e.g., People v. Gunner, supra, p. 234; People v. Sanchez, 15 N Y 2d 387, 390; People v. Failla, 14 N Y 2d 178, 183). I confess to occasional difficulty in conforming my own views with those of the Supreme Court, in this area of the law; and now that I have found a decision of that tribunal to which I can easily accommodate, I am unwilling to take a contrary position (Johnson v. New Jersey, supra).

Accordingly, we should adopt the same views advanced in Johnson (supra) and apply Miranda (supra) only to those cases in which the trial commenced on or after the date of that decision. Therefore, I concur in Judge Van Voorhis’ opinion to affirm.

Keating, J.

(concurring). While I concur with the views expressed by Judge Van Voobhis, I desire to point up some of the practical considerations which, to my mind, are of major significance.

As an academic exercise, it may be pleasant to ponder whether courts make new law or merely discover the law as it has always been, theretofore hidden away somewhere in all its power and glory. Upon the outcome, so goes jurisprudential thought, we will then determine whether to apply a rule retroactively (actually a misnomer, since it will then be considered as always having been the law) or whether to apply it prospectively only, or indeed, as in the case now before us, whether to apply it retroactively but only to the extent that cases are still in the ordinary appellate process.

Johnson v. New Jersey (384 U. S. 719) however, as well as the daily business of this court, provides a complete answer to the query on a practical level. The constitutional mandates of Miranda v. Arizona (384 U. S. 436) are of benefit only to those defendants whose trial commenced on or after June 13, 1966. Voluntary confessions are admissible after June 13, 1966 only if the defendant was informed of his right to remain silent, told that anything he said could be used against him, informed of his right to counsel and, if indigent, informed of his right to have counsel assigned (Miranda v. Arizona, 384 U. S. 436, 467, 469, 471, 473). Defendants tried prior to that date are governed by the principles set forth in such cases as Escobedo v. Illinois (378 U. S. 478) and People v. Gunner (15 N Y 2d 226).

I do not think it can be gainsaid that even a cursory examination of the Supreme Court opinions and the opinions of the New York Court of Appeals over the past 20 years witness tremendous strides in the fair and impartial administration of the criminal law. No doubt this growth will continue as indeed it must if we are to remain a vital and maturing society. But if every changing advance in the law means that we must wash away the past and undo all that has .already been done, I am afraid that this progress which is so desirable will be seriously hampered, often with no correllative gain to be shown for the effort.

I agree with Chief Judge Desmond that “ There is nothing in Johnson mandating our refusal of today to apply Miranda to a newly argued appeal like this one ” (pp. 353-354). But equally, there is nothing in Johnson which mandates the opposite result — that we do apply the law retroactively. Quite explicitly, the Supreme Court left the question of retroactive application open for individual consideration by the State courts (Johnson v. New Jersey, supra, p. 733). It thus behooves us to determine what may be gained and what may be lost by applying Miranda to cases still in the ordinary appellate process.

If we apply Miranda retroactively we adhere to what we called in People v. Loria (10 N Y 2d 368, 370) “ the general rule that we give effect to the law as it exists at the time of our decision ”. I confess that I am unable to read the cases cited in Loria as supporting so far-reaching a proposition. Matter of Tartaglia v. McLaughlin (297 N. Y. 419), Knapp v. Fasbender (1 N Y 2d 212) and Quaker Oats Co. v. City of New York (295 N. Y. 527) all involve statutes enacted between the trial and the appeal where the legislative intent to apply them retroactively was either explicit or was clearly inferable (cf. McMaster v. Gould, 240 N. Y. 379; Matter of Decker v. Pouvailsmith Corp., 252 N. Y. 1; Robinson v. Robins Pry Dock & Repair Co., 238 N. Y. 271).

Bnt be that as it may, the truth, as 1 see it, is that when the chips are down and when a significant number of persons or a significant public policy is involved, broad statements of a general rule do not and should not- preclude us from giving the specific question closer examination. We were presented with just such a problem in Rosenstiel v. Rosenstiel (16 N Y 2d 64) wherein this court upheld the validity of bilaterally obtained divorce decrees in Chihuahua, Mexico. Had we held such divorces invalid, we would have been faced with the question of retroactivity. Chief Judge DesmoNd thus said in a separate opinion (16 N Y 2d, p. 78): “I vote for a declaration that such divorces are void, but I am not bound to and do not vote to give this ruling any more than prospective effect. I cannot shut my eyes to the realities. Tens of thousands of such purported divorces have been granted to New Yorkers who acted on advice of attorneys who relied on 25 years of decisions by the New York lower courts * * * This court has a clear right to give our ruling prospective effect only (see Lyon v. Richmond, 2 Johns. Ch. 51; Harris v. Jex, 55 N. Y. 421; Great Northern Ry. v. Sunburst Co., 287 U. S. 358; Linkletter v. Walker, 33 U. S. L. W. 4576) and justice and fairness dictate that we should do so

In the end then, we are faced with assessing independent policy considerations which do not lend themselves to the declaration of a “ general rule.”

We are asked to examine the justice of applying one rule to the appellants considered by the Supreme Court in Miranda while we apply another to this case as well as similar cases involving the identical point (People v. Hocking, 18 N Y 2d 832; People v. Teams, 18 N Y 2d 835; People v. Kulis, 18 N Y 2d 318). Michael Vignera, whose appeal was considered along with Miranda, is to have a new trial. The present appellant, McQueen, will not have a new trial. Yignera was lucky. McQueen is not. This is a wholly different thing from talking about justice. Upon a new trial it may be that the People will be unable to establish Yignera’s guilt without the use of his confession. Bnt I would not want to suggest where the justice is and where it is not.

If it is unjust to deprive the appellant, McQueen, of Miranda’s benefits, it is at least equally unjust to deny them to those whose cases have already completed the appellate process. Yet no one has urged that we give the rule complete retroactivity. Any line drawn is essentially arbitrary. Better that we draw it with the fundamental function of criminal trials in mind-determining guilt or innocence — than that we bind ourselves to the slavery of unyielding rules.

While we speak of the justice of the proposition, we must keep in mind yet another factor. Until the Supreme Court handed down the opinion in Miranda, justice did not require that a defendant be given the four warnings already recited (People v. Gunner, 15 N Y 2d 226, supra). It was sufficient that a confession was made voluntarily and that a defendant had not affirmatively been denied access to counsel (People v. Donovan, 13 N Y 2d 148).

Involuntary confessions are consistently excluded in this State and all those who are denied Miranda’s benefits are free to test the voluntariness of their confessions within the limits outlined in People v. Huntley (15 N Y 2d 72). At such a hearing, a defendant is clearly entitled to show that he was not told of his privilege against self incrimination or his right to an attorney. Each will bear on voluntariness. But there is no purpose in automatically directing a new trial because a defendant was not told of these rights when, at the time, there was no requirement that he be told and, indeed, there existed a specific holding to the contrary (People v. Gunner, 15 N Y 2d 226, 233, supra). The District Attorney, in presenting his case, has some right to rely on the latest pronouncements of a State’s highest court.

At the oral argument held to consider this question of retro-activity, it appeared that in New York and Bronx Counties combined some 50 homicide convictions and approximately 100 felony nonhomicide convictions would be reversed if Miranda was applied retroactively. The total number of convictions affected in about one third of the counties of the State, exclusive of New York County, was given to us as 221. Retrials of those who could be retried in New York County would, it is asserted, occupy the trial courts of New York County for a full year.

The time is not significant. "What is significant is that many of those defendants convicted of heinous crimes would he set free to walk the streets because their confessions would be excluded, although there was not a question at all about their guilt or about the veracity and reliability of their confessions. No good reason has been suggested for reaching such an anomalous result and, as I see it, every significant policy consideration leads to the opposite conclusion. That is undoubtedly the reason why the Supreme Court in Johnson employed the unusual language it did in suggesting a specific cut-off date.

I, therefore, concur in the affirmance of the judgment appealed from.

Chief Judge Desmond

(dissenting). Under the Supreme Court’s “ Miranda ” confession rules (384 U. S. 436 [June, 1966]) this defendant’s conviction was illegal, as all must agree. Invariably — until now — the appellate courts of this State have applied to pending appeals the law as it stands on the date of decision of the appeal, unless vested property rights were at stake. Unvarying has been our fealty to the rule of the Schooner Peggy case (1 Cranch [5 U. S.] 103, 110 [1801]) where Chief Justice Maeshall wrote: “It is in the general true that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied, * * * In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside ” (quoted in our opinions in Robinson v. Robins Dry Dock & Repair Co., 238 N. Y. 271, 281, and Boardwalk & Seashore Corp. v. Murdock, 286 N. Y. 494, 498-499). In Black Riv. Regulating Dist. v. Adirondack League Club (307 N. Y. 475, 486-487) we stated, as the rationale for this fundamental, ‘ ‘ our unwillingness to perpetuate a judgment contrary to existing law ”. Contrary to existing law the criminal judgment here on appeal certainly is, yet it is being affirmed and perpetuated in the form of a 20-year-to-life imprisonment. The rule should be as it always has been, and must be for justice and fairness: that a lawful change not affecting property is effective at once and binds the appellate courts.

Right up to this case we have been insisting in every criminal appeal that the current law, including changes shortly theretofore made, be enforced on appeal (see, for instance, People v. Huntley, 15 N Y 2d 72 [1965]; People v. Friedlander, 16 N Y 2d 248 [1965]; People v. Gunner, 15 N Y 2d 226 [1965]; People v. Sanchez, 15 N Y 2d 387 [1965]; People v. Failla, 14 N Y 2d 178 [1964]; People v. Donovan, 13 N Y 2d 148 [1963]; People v. Loria, 10 N Y 2d 368 [1961]). The cases listed are only a sampling. There are many others, new and old — and none to the contrary till now. Every criminal cause heard on direct appeal in this court has, until we reached this ease and its companions, been decided according to the law as we found it on our day of decision.

What reason do we give for this repudiation of a rule ancient in origin but modern in its justice ? Apparently, we are refusing to apply to this defendant’s appeal the law as we all understand it to be, simply because the Supreme Court, after reversing in Miranda, Vignera and Westover (and on the same ground affirming as to Stewart) on June 13, 1966, announced a week later in Johnson v. New Jersey (384 U. S. 719) that the State courts were not bound to enforce the Miranda rules except as to trials commenced after the Miranda decision date. The United States Supreme Court thus claimed for itself the right, in criminal liti-gations involving constitutional claims, to order that a new rule be prospective only in application ‘ ‘ ‘ where the exigencies of the situation require such an application ’ ” (384 U. S. 726, 727). But this court has never until now asserted such a right for itself, nor has it ever considered any exigencies as suspending the operation of the basic rule that each man’s case is to be decided on appeal according to the law as is. Our court today is obeying, as it must, the new confession rules announced in Miranda, but it seems to be overlooking the explicit statement in Johnson v. New Jersey (384 U. S. 733) that the States “ are still entirely free * * * to apply those standards in a broader range of- cases than is required by this decision ’ ’ — that is to say, we may apply the new rules to currently argued appeals just as New York has always done in the past. There is nothing in Johnson mandating our refusal of today to apply Miranda to a newly argued appeal like this one.

Our court presaged the Escobedo v. Illinois decision (378 U. S. 478) in People v. Donovan (13 N Y 2d 148, supra) and we have consistently applied the Donovan rule to cases which were in the normal appellate process at the time Donovan was decided. (See, e.g., People v. Failla, 14 N Y 2d 178, supra; People v. Gunner, 15 N Y 2d 226, supra; People v. Sanchez, 15 N Y 2d 387, supra; People v. Friedlander, 16 N Y 2d 248, supra.) Thus we are applying the Donovan-Escobedo doctrine to “a broader range of cases than is required by [Johnson] ” (384 U. S., p. 733). I see no valid reason why we should now depart from our long-settled practice and arbitrarily decline to apply Miranda v. Arizona (supra) in a similar fashion.

Being under no compulsion from the Supreme Court to apply old instead of new law here, we should at least look at the justice of the thing. I see no justification for our deciding this McQueen case in October, 1966 by rules stricter and more severe than those considered by the Supreme Court in June, 1966 (Miranda et al.) to be necessary for the protection of the constitutional rights of persons charged with crime. The Miranda opinion cannot be read as holding anything less than this: that under the Fifth Amendment admission into evidence of a confession secured without compliance with the requirements set out at pages 444 and 445 of 384 U. S. is a violation of the defendant’s constitutional rights. Obeying that decision and its own traditions, the New York Court of Appeals should give this defendant a new trial.

Consider the inequity and inequality, the unequal protection. Compare this defendant’s position with that of Michael Vignera whose appeal was argued in the Supreme Court with that of Miranda and others and whose conviction was reversed, and a new trial ordered" by the Supreme Court on June 13, 1966 (384 U. S. 436). Vignera’s crime had been committed in October, 1960; defendant McQueen’s was in November of that year. Vignera was convicted in a New York court in August, 1961. Mrs. McQueen was found guilty in a New York court in November, 1964. Yet opposite results are ordered by the courts as to the same question of law.

No admissible concepts of justice and equality permit the courts to give Vignera a reversal and a new trial, and deny it to appellant McQueen. A considerable — as yet undetermined — number of defendants were convicted in New York courts on confessions obtained, as were Vignera’s and McQueen’s, in violation of the Miranda rules and in violation of their now-declared constitutional rights. Of all of these people is Vignera only to have a remedy? Is this the New York concept of evenhanded justice? Like other citizens we must do what we can to aid in the administration of criminal justice, but as Judges it is our duty to apply the law. Surely this duty is not diminished wjten the error brought to our attention, on appeal is a violation, as held by our highest tribunal, of the Bill of Rights.

The judgment should be reversed and a new trial ordered.

Opinion by Judge Van VooRhis. All concur, Judges Scileppi and Keating in separate opinions in each of which the other concurs as well as in the opinion by Judge Van VooRhis, except Chief Judge Desmond, who dissents in an opinion in which Judge Fuld concurs.

Upon reargument: Judgment affirmed. 
      
       In Loria, several members of this court bad expressed a desire to apply Mapp prospectively only (see People v. Loria, supra, pp. 370-371).
     