People v. Weinstein

• Decision Date: 06 July 1962
• Citation: 11 N.Y.2d 1098,184 N.E.2d 312,230 N.Y.S.2d 721
• Parties: , 184 N.E.2d 312 The PEOPLE of the State of New York, Respondent, v. Burton WEINSTEIN, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 721

230 N.Y.S.2d 721

11 N.Y.2d 1098, 184 N.E.2d 312

The PEOPLE of the State of New York, Respondent, v. Burton WEINSTEIN, Appellant.

Court of Appeals of New York.

Argued April 25, 1962.

Decided July 6, 1962.

Louis Waldman, New York City, for appellant.

Edward S. Silver, Dist. Atty. (Aaron Nussbaum, Brooklyn, of counsel), for respondent.

PER CURIAM.

Judgment affirmed; no opinion.

DESMOND, C. J., and DYE, FROESSEL, BURKE and FOSTER, JJ., concur.

FULD, J., dissents in the following opinion in which VAN VOORHIS, J., concurs.

FULD, Judge (dissenting).

The defendant was taken into custody by the police on the afternoon of September 17, 1959, at about 4 o'clock in the afternoon. He was questioned extensively about certain burglaries and admitted, according to the police officers, that one of the items stolen was a television set found in his home. Subsequently, at about midnight of the same day, the police officers went with the defendant to the latter's apartment, took out the television set and brought it back to the police station.

The questioning continued for a short time and at 1:15 A.M. the defendant was booked for vagrancy; some hours later, he was arraigned in Magistrates' Court on this charge and, upon the request of the police, paroled in their custody. The defendant was then brought back to the police station and the burglary investigation was continued. After further police interrogation, he confessed to the burglary of which he stands convicted and was arraigned on this charge some 43 hours after being arrested.

In my opinion, the confession should not have been admitted into evidence. As the foregoing account indicates, it was taken from the defendant after he had been arraigned on the vagrancy charge which, the reord makes clear, was nothing more or less than a sham, a pretext used by the police to assure their retention of the defendant while they continued interrogating him about the burglaries. Indeed, not only did the facts negate the charge the defendant actually had $30 in his pocket and was living with his wife in an apartment (see, e. g., People v. Sohn, 269 N.Y. 330, 199 N.E. 501) but the police virtually admitted that they 'booked' him for vagrancy in order to hold him for further questioning about the burglary. The vagrancy charge was, of course, never pressed.

The court should not tolerate such a flagrant abuse of criminal process as that in which the police here engaged. (See Rex v. Dick, (1947) 2 D.L.R. 213, 225; see, also, Culombe v. Connecticut, 367 U.S. 568, 627, 632, 81 S.Ct. 1860, 6 L.Ed.2d 1037.) As the Court of Appeal for the Province of Ontario declared in Rex v. Dick ((1947) 2 D.L.R. 213, 225, supra), a case not unlike the one before us, where a murder suspect was arrested for vagrancy and then questioned with respect to the murder of which she was suspected, 'It seems to me to be an abuse of the process of the criminal law to use the purely formal charge of a trifling offence upon which there is no real intention to proceed, as a cover for putting the person charged under arrest, and obtaining from that person incriminating statements, not in relation to the charge laid and made the subject of a caution, but in relation to a...