People v. Cerullo

• Decision Date: 27 October 1966
• Citation: 18 N.Y.2d 839,222 N.E.2d 605,275 N.Y.S.2d 845
• Parties: , 222 N.E.2d 605 The PEOPLE of the State of New York, Respondent, v. Vincent CERULLO and Carmine Moccio, Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 845

275 N.Y.S.2d 845

18 N.Y.2d 839, 222 N.E.2d 605

The PEOPLE of the State of New York, Respondent, v. Vincent CERULLO and Carmine Moccio, Appellants.

Court of Appeals of New York.

Oct. 27, 1966.

J. Kenneth O'Connor, New York City, for Vincent Cerullo, appellant.

Robert M. De Poto, Syosset, for Carmine Moccio, appellant.

William Cahn, Dist. Atty. (Martin I. Silberg, Mineola, of counsel), for respondent.

Louis J. Lefkowitz, Atty. Gen. (Samuel A. Hirshowitz and Barry Mahoney, New York City, of counsel), amicus curiae.

Leonard Rubenfeld, Dist. Atty. (Benj. J. Jacobson, Jackson Heights, James J. Duggan, Tuckahoe, and Francis J. Valentino, of counsel), for New York District Attorneys Ass'n, amicus curiae.

Isidore Dollinger, Dist. Atty. of Bronx County (Roy Broudny and Peter R. De Filippi, New York City, of counsel, amicus curiae.

PER CURIAM.

The judgments of conviction herein are affirmed. Moccio's arrest as a parole violator was proper. Therefore, his statements were properly received into evidence (cf. People v. Robinson, 13 N.Y.2d 296, 246 N.Y.S.2d 623, 196 N.E.2d 261). The failure to hold a Voir dire on the voluntariness of Cerullo's confession was not error because such a procedure was not required at the time of trial herein. There was no fatal prejudice arising out of the joint trial (Code Crim.Proc., § 542).

The cases relied on in the dissent herein (People v. Barbato, 254 N.Y. 170, 172 N.E. 458; People v. Valletutti, 297 N.Y. 226, 78 N.E.2d 485) contained proof of objectively verifiable injuries, not equivocal evidence of subjective complaints of pain by the defendants.

It is fundamental that, in a noncapital case, the weight of the evidence is not for our review, and this court will not disturb findings of fact which are based on conflicting testimony (People v. Lobel, 298 N.Y. 243, 251, 82 N.E.2d 145, 148). The only question before us is whether, as a matter of law, the record does not support the holding that the confession was proven, beyond a reasonable doubt, to be voluntary (N.Y.Const., art. VI, § 3, subd. a). In our analysis of this issue, we must, because of the Appellate Division's affirmance, view the facts in a light most favorable to the People's case (People v. Monaco, 14 N.Y.2d 43, 45, 248 N.Y.S.2d 41, 43, 197 N.E.2d 532, 534). Thus circumscribed by our jurisdiction, it cannot be said, as a matter of law, that, considering the evidence adduced at the trial and at the hearing the confessions were involuntary.

Although both defendants raised objections to the admission of certain statements because they had not been advised of their right to counsel and their right to remain silent, these objections were properly overruled (People v. Gunner, 15 N.Y.2d 226, 257 N.Y.S.2d 924, 205 N.E.2d 852). Since defendants were tried before June of 1966, Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) is not applicable to these cases (People v. McQueen, 18 N.Y.2d 337, 274 N.Y.S.2d 886, 221 N.E.2d 550, decided herewith).

BURKE, Judge (dissenting).

I am constrained to disagree with the decision for affirmance in this case. It is incorrect to hold that the issue of voluntariness in this case is only a fact question upon which we cannot pass. In cases such as this we are faced with a question of law, namely, whether the trier of fact could on the evidence before it conclude beyond a reasonable doubt that these confessions were voluntary. Basically it is a question of whether the People have sustained their burden of proof. In People v. Barbato, 254 N.Y. 170, 172 N.E. 458, this court stated with succinctness the traditional test the People had to meet before the issue of voluntariness became merely a fact question. We there said: "The question whether there is any evidence of the existence of a voluntary confession is one of law. In the first instance this question must, of course, be decided by the trial judge. If the evidence shows without dispute that the confession was extorted by force or fear Or if a verdict that it was freely made would be clearly against the weight of evidence, the judge should reject it. Only where a Fair question of fact is presented should the jury be permitted to determine whether the confession is voluntary. If there is no such conflict, and if the evidence points clearly to the involuntary nature of the confession, the judge should exclude it as without evidence to support it." (Supra, p. 173, 172 N.E. p. 459, emphasis supplied.)

Now, of course, with the trial court itself obliged to determine beyond a reasonable doubt that the confession was voluntarily given (Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908) its function in determining the admissibility of a confession is enlarged, but this does not alter the requirement stated in Barbato that if such a determination 'would be clearly against the weight of evidence' the confession is inadmissible as a matter of law.

We should also keep in mind, in considering what the People's burden of proof is in a confession case, the 'increasingly meticulous' test of voluntariness developed by the United States Supreme Court in recent years. (Johnson v. State of New Jersey, 384 U.S. 719, 730, 86 S.Ct. 1772, 16 L.Ed.2d 882; cf. Davis v. State of North Carolina, 384 U.S. 737, 86 S.Ct. 1761, 16 L.Ed.2d 895.) Under circumstances such as we have here it is not only reasonable but also constitutionally mandated that a heavy burden of proof should be imposed on the People to establish the voluntariness of the confession. Determination of whether the confession was a product of a will overborne or whether it was a product of defendant's having voluntarily waived his constitutional right to remain silent is analogous to the determination our courts are now required to make on the issue of whether a suspect from whom a confession has been obtained voluntarily and intelligently waived his rights to remain silent and to the assistance of counsel. (Miranda v. State of Arizona, 384 U.S. 436, 478, 86 S.Ct. 1602, 16 L.Ed.2d 694.) As was said in Miranda: 'This Court has always set high standards of proof for the waiver of constitutional rights * * * and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden...