People v. Vella

• Decision Date: 29 December 1967
• Citation: 21 N.Y.2d 249,287 N.Y.S.2d 369,234 N.E.2d 422
• Parties: , 234 N.E.2d 422 The PEOPLE of the State of New York, Respondent, v. Edwin H. VELLA, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 369

287 N.Y.S.2d 369

21 N.Y.2d 249, 234 N.E.2d 422

The PEOPLE of the State of New York, Respondent, v. Edwin H. VELLA, Appellant.

Court of Appeals of New York.

Dec. 29, 1967.

Stuart J. Justice, Albany, for appellant.

George J. Aspland, Dist. Atty. (Joseph F. O'Neill, Riverhead, of counsel), for respondent.

FULD, Chief Judge.

The defendant was arraigned in the New York City Criminal Court upon a charge of criminally receiving stolen property. Counsel was assigned to represent him, and the trial was adjourned to a future date. The defendant, released upon his own recognizance, was immediately arrested, as he was about to leave the courtroom, by New York State Police who were present during the arraignment proceedings. They turned him over to other members of the State Police force in Suffolk County. Shortly thereafter, these officers questioned him in the absence of, and without notice to, his attorney concerning a burglary of a private home in that county and the theft therefrom of property which was also involved in the New York County receiving charge. Such interrogation, despite the defendant's 'waiver' of his right to counsel, was impermissible. Consequently, the confession obtained from him should not have been received in evidence. (See, e.g., People v. Donovan, 13 N.Y.2d 148, 151--153, 243 N.Y.S.2d 841, 193 N.E.2d 628; People v. Waterman, 9 N.Y.2d 561, 565--566, 216 N.Y.S.2d 70; People v. Di Biasi, 7 N.Y.2d 544, 549--551, 200 N.Y.S.2d 21, 166 N.E.2d 825; Escobedo v. State of Illinois, 378 U.S. 478, 484--488, 490--492, 84 S.Ct. 1758, 12 L.Ed.2d 977; Massiah v. United Sttaes, 377 U.S. 201, 204--206, 84 S.Ct. 1199, 12 L.Ed.2d 246.)

Reversible error was also committed when the trial judge refused the defendant's request to submit to the jurors the question of the voluntariness of the confession after he had, in effect, instructed them that they need only consider and decide whether the confession was true or false. (See, e.g., People v. Rensing, 20 N.Y.2d 936, 286 N.Y.S.2d 481, 233 N.E.2d 459; People v. Huntley, 15 N.Y.2d 72, 77--78, 255 N.Y.S.2d 838, 204 N.E.2d 179; People v. Barbato, 254 N.Y. 170, 172--174, 172 N.E. 458; Rogers v. Richmond, 365 U.S. 534, 545--546, 81 S.Ct. 735, 5 L.Ed.2d 760.)

The conviction must be reversed and a new trial ordered.

KEATING, Judge (concurring).

I concur in the result reached by the majority because I believe that the charge on voluntariness was improper. I cannot agree with the court's conclusion that the statements made with regard to the theft of the property in Suffolk County should be excluded merely because counsel had been assigned to represent him on the charge of receiving stolen property in New York City.

The crimes of receiving stolen property and larceny--and burglary--are 'separate, distinct offenses' (People v. Kupperschmidt, 237 N.Y. 463, 465, 143 N.E. 256, 32 A.L.R. 447; see, also, People v. Cefaro, 21 N.Y.2d 252, 287 N.Y.S.2d 371, 234 N.E.2d 423, decided herewith). And the mere fact that counsel may have been appointed to represent the accused in one county on a charge of receiving stolen property should not prevent...