People v. Ortiz

• Decision Date: 03 June 1969
• Citation: 302 N.Y.S.2d 120,32 A.D.2d 747
• Parties: The PEOPLE of the State of New York, Respondent, v. Ruben ORTIZ, Defendant-Appellant. The PEOPLE of the State of New York, Respondent, v. Jesus NEGRON, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 120

302 N.Y.S.2d 120

32 A.D.2d 747

The PEOPLE of the State of New York, Respondent, v. Ruben ORTIZ, Defendant-Appellant.

The PEOPLE of the State of New York, Respondent, v. Jesus NEGRON, Defendant-Appellant.

Supreme Court, Appellate Division, First Department.

June 3, 1969.

H. R. Shapiro, New York City, for respondent.

J. N. Iannuzzi, New York City, for defendant-appellant Ortiz.

O. J. Rogge, New York City, for defendant-appellant Negron.

Before EAGER, J.P., and McGIVERN, MARKEWICH and NUNEZ, JJ.

PER CURIAM.

Judgments convicting defendants, after trial before court and jury, of murder in the first degree, affirmed.

Although it was error for the court to charge the jury that the failure to advise the defendants as to their rights had no bearing upon the issue of the voluntariness of their confessions, the error was harmless in the circumstances of this case. This was a pre-Miranda trial and, considering the 'totality of the circumstances', it is clear that the confessions were voluntarily given. (See People v. Horton, 18 N.Y.2d 355, 275 N.Y.S.2d 377, 221 N.E.2d 909.) Particularly, it is noted that Negron reiterated the inculpatory statements to the assistant district attorney. In any event, neither defendant excepted to the charge of the court, nor requested that the court charge differently than it did. Therefore, the point was not reserved for review and we conclude that the interests of justice will not be served by another trial.

Furthermore, in the circumstances of this case, we conclude that there was no violation of the constitutional rights of the defendants in the use of their confessions on the joint trial. The defendants were witnesses on the trial and each defendant was fully accorded and did exercise the right of cross-examination of the other. Thus there was no violation of the defendants' constitutional right to confront their accusers. (Cf. Bruton v. United States, 391 U.S. 123, 134, 88 S.Ct. 1620, 20 L.Ed.2d 476; People v. Baker, 23 N.Y.2d 307, 317, 296 N.Y.S.2d 745, 749, 244 N.E.2d 232, 235; People v. Willis, 30 A.D.2d 817, 292 N.Y.S.2d 298.) Also, it is noted that here the confessions of the two defendants dovetailed, one with the other. Where a defendant's confession is accepted as voluntary, prejudice does not necessarily result from the admission into evidence of a hearsay statement of similar import made by a co-defendant (see People v. Moore, 32 A.D.2d 515, 299 N.Y.S.2d 532); nor is there the 'devastating risk' applicable in the case where a separate trial is denied to a nonconfessing defendant (see United States ex rel. Cantanzaro v. Mancusi, 2 Cir., 404 F.2d 296); and error, if any, was harmless (cf. People v. Pelow, 3/6/69, 24 N.Y.2d 161, 299 N.Y.S.2d 185, 247 N.E.2d 150). Under the circumstances, 'the logic of Bruton is inapplicable'. (People v. McNiel, April 23, 1969, 24 N.Y.2d 550, 301 N.Y.S.2d 503, 249 N.E.2d 383.) Finally, it should be noted that the defendant Negron did not move for or seek a severance of the trial (see People v. Ortiz, 30 A.D.2d 510, 294 N.Y.S.2d 625).

All concur except NUNEZ, J., who dissents in the following memorandum:

I vote to reverse and order a new trial. In this joint trial for murder in the first degree the court plainly erred in its charge to the jury to the effect that the admitted failure of the police or the District Attorney to warn the appellants of their rights to remain silent and to be represented by counsel had no bearing upon the issue of the voluntariness of the appellants' confessions. See Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513; People v. Horton, 18 N.Y.2d 355, 275 N.Y.S.2d 377, 221 N.E.2d 909. And such error was unquestionably prejudicial to the appellants since without their confessions the prosecution clearly would not have been able to make out a case. Indeed, the trial judge so charged the jury. The crucial nature of the voluntariness question in this case mandates that the appellants be afforded a new trial at which the voluntariness of their confessions will be tested by proper legal standards. The closeness of the case is attested also by the fact that on the first trial the jury failed to reach agreement after protracted deliberations.

Considering the 'totality of the circumstances' (Clewis v. Texas, 386 U.S. 707, 708, 87 S.Ct. 1338, 18 L.Ed.2d 423 (1967)) disclosed by this record, there is a grave question whether the People established the voluntariness of the repudiated confessions beyond a reasonable doubt, especially in light of the medical testimony and entries in the Department of Correction records which tend to corroborate the appellants' assertions that they were physically abused.

Although it is not necessary...