Opinion
Argued June 9, 1966
Decided July 7, 1966
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JAMES C. CRANE, J.
William Bennett Turner and Anthony F. Marra for appellant.
John M. Braisted, Jr., District Attorney ( Ralph Di Iorio of counsel), for respondent.
The defendant was tried with a codefendant and was implicated by name in the latter's confession which was received into evidence. Since this confession was held by the Appellate Division to be inadmissible and a new trial was ordered as to the codefendant, the Appellate Division should also have reversed this defendant's conviction and ordered a new trial in the interests of justice. (See, e.g., People v. Morgan, 17 N.Y.2d 696; People v. Donovan, 13 N.Y.2d 148, 154; People v. Robinson, 13 N.Y.2d 296; People v. Rodriguez, 11 N.Y.2d 279, 285; People v. Noble, 9 N.Y.2d 571, 575; People v. Waterman, 9 N.Y.2d 561, 567; People v. Abel, 298 N.Y. 333; People v. Rudish, 294 N.Y. 500.)
The judgment should be reversed and a new trial ordered.
Chief Judge DESMOND and Judges FULD, BURKE, BERGAN and KEATING concur in Per Curiam opinion; Judges VAN VOORHIS and SCILEPPI dissent and vote to affirm. ( People v. Pugach, 16 N.Y.2d 504; People v. McCall, 17 N.Y.2d 152.)
Judgment reversed, etc.