Opinion
July 10, 1967
Judgment of the Supreme Court, Queens County, rendered April 23, 1964, reversed on the law and the facts, and a new trial ordered. Appellant was tried with one Sanchez on an indictment charging them with acting in concert to murder John T. Conway on July 3, 1963. Both Sanchez and appellant gave statements to the police prior to trial, the Sanchez statement accusing appellant of being the slayer and appellant's statement accusing Sanchez. Both statements were admitted in evidence at the trial over appropriate objection. The Court of Appeals has since determined that the Sanchez statement should have been excluded because he was interrogated and made inculpatory statements in the absence of counsel after his retained attorney had advised the police that he wished to see and to speak to Sanchez ( People v. Sanchez, 15 N.Y.2d 387, 389). Under the circumstances, the interests of justice require reversal and a new trial as to appellant ( People v. Robinson, 13 N.Y.2d 296, 302; People v. Donovan, 13 N.Y.2d 148, 154; People v. Rodriguez, 11 N.Y.2d 279, 285). Reversal is also required by the recent holding of the Court of Appeals in People v. Ryan ( 19 N.Y.2d 100) prohibiting the substitution of an alternate juror after the original jury has begun its deliberation, even though the substitution is consented to by the defense. Since a new trial is required in any event, we have not considered appellant's contention that his statement should have been excluded because it was taken in the absence of counsel after he had requested an opportunity to confer with an attorney, and after his arraignment on a vagrancy charge which was a pretext to hold him for interrogation with respect to the crime of which he was convicted. The circumstances surrounding the taking of the statement will be the subject of inquiry prior to the offer of the statement in evidence, on the new trial, and the issues of fact with respect thereto may be better decided at that time. Beldock, P.J., Christ, Rabin, Benjamin and Nolan, JJ., concur.