Opinion
March 14, 1966
Appeal by defendants from separate judgments of the Supreme Court, Kings County, rendered January 10, 1964, convicting defendant Burwell of manslaughter in the second degree and defendants McMoore and Washington of manslaughter in the first degree, upon a jury verdict, and imposing sentence. The action is remitted to the trial court for further proceedings in accordance with People v. Huntley ( 15 N.Y.2d 72). The procedure prescribed in People v. Korda ( 24 A.D.2d 577) should be followed. Upon such hearing, the court shall also consider and make findings on the issue as to whether defendant Burwell's counsel was denied access to him during his interrogation by the authorities. In the interim, determination of the appeals in this court will be held in abeyance. Defendants' convictions were based, in part, upon alleged confessions and statements. On the trial defendants contended, among other things, that their statements and confessions to the police and to the District Attorney had been coerced by the police and that they were involuntary. The issues as to whether the confessions were voluntary or involuntary were submitted to the jury. Defendants further contend on this appeal that defendant Burwell's counsel was denied access to him while he was being interrogated by the police and the prosecutor; and that, as a consequence of the denial of Burwell's right to confer with his waiting counsel, one of his confessions should not have been admitted into evidence as against him or the codefendants, who were inculpated thereby. On the present state of the record, it is not precisely clear as to when Burwell's attorney first came to the station house, first demanded the opportunity to speak to Burwell, first spoke to the assistant District Attorney who was conducting an investigation and first conferred with Burwell with the permission of the prosecutor and the police. In our opinion, whether Burwell's counsel was denied access to him is a factor to be considered on the issue of the voluntariness of the inculpatory statements obtained from Burwell ( People v. Black, 25 A.D.2d 663). Nothing contained herein shall be deemed a modification of the existing rule that in this State no duty devolves upon the police or the prosecutor, incident to their interrogation of any accused person after arrest and prior to arraignment, to advise him of his right to remain silent and to obtain counsel ( People v. Acciarello, 23 A.D.2d 777 [2d Dept.]). If at bar interrogation of Burwell was completed before counsel appeared, the rule in People v. Donovan ( 13 N.Y.2d 148) and like cases will not apply ( People v. Livingston, 22 A.D.2d 650). Beldock, P.J., Christ, Hill, Rabin and Benjamin, JJ., concur.