People v. Powell

• Decision Date: 01 June 1964
• Citation: 21 A.D.2d 789,250 N.Y.S.2d 592
• Parties: The PEOPLE of the State of New York, Respondent, v. William POWELL and John Pilgrim, Appellants.
• Court: New York Supreme Court — Appellate Division

Page 592

250 N.Y.S.2d 592

21 A.D.2d 789

The PEOPLE of the State of New York, Respondent, v. William POWELL and John Pilgrim, Appellants.

Supreme Court, Appellate Division, Second Department.

June 1, 1964.

Harold M. Sichel, Rockville Centre, Max Tachna, New York City, for appellants.

Wm. Cahn, Dist. Atty., James J. Byrne, Mineola, of counsel, for respondent.

Before BELDOCK, P. J., and UGHETTA, KLEINFELD, BRENNAN and HOPKINS, JJ.

MEMORANDUM BY THE COURT.

Appeals by defendants from judgments of the County Court, Nassau County, rendered May 17, 1963 after a jury trial, convicting them of burglary in the third degree, robbery in the first degree, grand larceny in the first degree, assault in the second degree, petit larceny and malicious mischief as a felony; and convicting defendant Powell of the additional crime of possession of burglar's tools, and imposing sentence.

Judgment reversed on the law and a new trial granted as to both defendants. The findings of fact implicit in the jury's verdict have been considered; such findings are affirmed.

In our opinion, the Trial Court committed prejudicial error when it summarily overruled, without a hearing, the defendants' challenge to the jury panel, despite the absence of any exception or denial by the prosecutor with respect to such challenge (Code Crim.Proc. §§ 363, 364 and 366; People v. Ebelt, 180 N.Y. 470, 474-475, 73 N.E. 235, 236; People v. Wilber, 61 Hun 620, 15 N.Y.S. 435; People v Damron, 160 App.Div. 424, 145 N.Y.S. 239; affd. 212 N.Y. 256, 106 N.E. 67; see also: People v. Dow, 3 A.D.2d 979, 162 N.Y.S.2d 960; People v. Weiss, 19 A.D.2d 900, 244 N.Y.S.2d 914; People v. Lawrence, 19 A.D.2d 899, 244 N.Y.S.2d 913).

We also believe that by reason of the Trial Court's assignment of a single attorney to represent the two defendants whose interests were in conflict, the defendant Pilgrim was denied 'his right to have the effective assistance of counsel' (Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457, 467, 86 L.Ed. 680).

The defendant Pilgrim was also deprived of a fair trial by the court's failure adequately to instruct the jury that it could not consider the written and oral admissions of his codefendant Powell as evidence against Pilgrim.

It is true that at the time of the admission of the written confession and again at defense counsel's request at the end of the main charge, the court did instruct the jury that Powell's confession was 'not binding on the defendant Pilgrim.' But such cursory and perfunctory instruction without further elaboration or explanation, may not be deemed to neutralize the repeated and emphatic references, both by the prosecutor in his summation and by the court in its main charge, to Powell's written and oral admissions as indicative of the guilt of both defendants. A reading of the whole charge leaves no doubt of its inadequacy and prejudice as to the defendant Pilgrim, despite the court's superficial attempt to cure the error after the main charge (cf. People v. Lombard, 4 A.D.2d 666, 168 N.Y.S.2d 419, and cases there cited). Indeed, the ambivalence of the charge, when read...