Opinion
Reargued April 18, 1968.
Decided May 15, 1968
Appeal from the Appellate Division of the Supreme Court in the Fourth Judicial Department, CARLTON A. FISHER, J.
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 FULD and Judges BURKE, SCILEPPI, BERGAN, KEATING and BREITEL. Judge JASEN dissents and votes to affirm.