Opinion
May 31, 1967
Appeal from a judgment of the County Court of Ulster County rendered upon a verdict convicting defendant of the crime of larceny in the second degree. The defendant, Kabil Bajramovoc, was indicted by the Ulster County Grand Jury on December 22, 1964 for the crimes of burglary in the third degree, grand larceny in the first degree, and unlawfully entering a building. These crimes allegedly took place on November 2, 1964 at a roadside restaurant on Route 28A in the Town of Ulster, County of Ulster, New York, when the defendant was in the company of Marash Mirakaj and Ali Ahmeti, who were also indicted for the same crimes. On November 2, 1964, at about 5:00 P.M. the defendant signed a confession after interrogation at the Ulster County Jail. His companions signed statements which exculpated them and which incriminated the defendant. A joint trial was held on September 17, 1965, and the jury rendered a verdict on September 23, 1965, wherein it determined that the defendant and his codefendants were guilty of the crime of larceny in the second degree, and not guilty of burglary in the third degree, or of unlawful entry. The defendant's confession was admitted into evidence on the trial after a separate Huntley hearing had been conducted. The statements of the codefendants were also admitted into evidence without objection from the defendant's counsel. Immediately, when the prosecution attempted to have them read to the jury, defendant's counsel withdrew his consent, and sought to have them withdrawn from evidence upon the grounds that they were self-serving and he would be denied the right of cross-examination of the codefendants, who did not take the stand. The objection was denied and the statements were read to the jury. The defendant now contends that the people did not prove beyond a reasonable doubt that his confession was voluntarily given; that he was not advised of his right to counsel to remain silent, or that any statement obtained might be used against him; and that the admission of the statements of the codefendants was a violation of the hearsay rule and was prejudicial to him. This case was tried on September 17, 1965. Although Miranda v. Arizona ( 384 U.S. 436) determined that law enforcement officers must advise a party arrested that he need not answer, that whatever he said might be used against him, and of his right to counsel before interrogating him, the rule is not retroactive and does not apply to those defendants who were tried prior to June 13, 1966. ( People v. McQueen, 18 N.Y.2d 337). In the instant case, the record clearly establishes that the defendant was fully advised of his rights and that his statement was read and explained to him in considerable detail prior to his signing it. Basically, the contention of the defendant is that he did not understand or comprehend the English language. The defendant was born in Yugoslavia and had been in this country for about one year when he was arrested. He was able to speak Yugoslavian, Albanian, Russian, and some Italian and English, and was studying English at night school in Manhattan. It is possible that he could not read or write English, but the statement was read and explained to him, and he admitted on the hearing that when he was asked if he understood each sentence, he answered yes. This confirms the testimony of the two police officers who took his statement, and of the Notary Public before whom he swore to the statement. No contention is made, nor is there any evidence that the defendant requested counsel, nor is there any evidence of a promise or threat or deception on the part of the police officers. The record supports the determination that the confession was voluntarily made. The admission of the statements of the codefendants into evidence was an obvious error since they clearly accuse the defendant of having committed the burglary. To the extent that they apply to the defendant, they also violate the hearsay rule and deprived him of the right of cross-examination. The objection of the defendant's counsel to their admission, though belated, was still timely made as the objectionable material had not reached the jury at the time of the objection. Further, despite the defense counsel's objection to their admission, no instructions were given to the jury, limiting the effect of the two statements as to the defendant at the time of their admission or, in the charge to the jury. The failure of the defense counsel to request that the jury be instructed and charged that the statements were binding only on the codefendants was not a waiver which prevents him from now claiming error. (Code Crim. Pro., § 527.) We conclude that the admission of these statements as against the defendant was so prejudicial as to deprive him of a fair trial. ( People v. Marshall, 306 N.Y. 223; People v. Driscoll, 20 A.D.2d 880; People v. Goldston, 20 A.D.2d 958.) Judgment reversed, on the law and facts, and a new trial ordered. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur in memorandum by Staley, J.