People v. Burd — 22 N.Y.2d 653

Majority

p. 653

The People of the State of New York, Respondent, v. Robert Burd, Defendant, and John W. Hocking, Appellant.

Reargued April 18, 1968;

decided May 15, 1968.

p. 654

Herman Schwartz for appellant.

Michael F. Dillon, District Attorney (Thomas P. Flaherty of counsel), for respondent.

Upon further reargument: Judgment, as amended, reversed and a new trial ordered in a memorandum: Upon this reargument we adhere to our earlier determination that defendant’s confession was proven to be voluntary beyond a reasonable doubt ( 18 N Y 2d 832 ). Nevertheless, since his codefendant’s involuntary confession, which implicated him, was admitted at their joint trial, defendant Hocking should, as a matter of fair procedure, receive a new trial with defendant Burd’s confession excluded (People v. Cender, 18 N Y 2d 610 ; People v. Morgan, 17 N Y 2d 696 ; People v. Donovan, 13 N Y 2d 148 ; People v. Rodriguez, 11 N Y 2d 279 ; People v. Noble, 9 N Y 2d 571 ; People v. Waterman, 9 N Y 2d 561 ; People v. Bonino, 1 N Y 2d 752 ; People v. Rudish, 294 N. Y. 500 ).

Concur: 'Chief Judge Fued and Judges Burke, Scieeppi, Bergan, Keating and Breecel. Judge Jasen dissents and votes to affirm.