Opinion
November 21, 1967
Judgment of conviction rendered December 8, 1966, unanimously reversed, on the law and the facts, the plea of guilty vacated and the case is remanded for further proceedings under the indictment. On April 8, 1966, defendant was observed removing a box from the phonograph department of the S. Klein store in Newark, New Jersey. Defendant took the package from the store without permission and without paying for the parcel. He was arrested later, some distance from the entrance to the store, as he was about to place the box in a 1966 red Mustang automobile. The arrest was made by a Newark police officer who was accompanied by a store detective of S. Klein. Defendant was taken to a room in the basement of the store and there interrogated at length. In the first hearing on the motion to suppress certain objects the police officer testified that he interrogated the defendant, obtained his car keys and searched the trunk of the car. Both the officer and the store detective on October 20, 1966, testified they had no reason at that time to believe the car was stolen. On October 21, 1966, when the case was scheduled to proceed to trial the Assistant District Attorney orally notified defense counsel that the statements made by defendant to the store detective would be offered in evidence. Defense counsel insisted upon and was eventually granted an opportunity to move to suppress such statements. The matter was continued to October 24, 1966. On that date the officer testified that he did not arrest the defendant formally, and testified further that he did not advise him of his constitutional rights or right to remain silent. Although only a few days earlier the officer testified that he had actively participated in the questioning of defendant, on October 24, 1966 he testified, in substance, that he merely stood by while the store detective questioned defendant. Both the store detective and the officer testified defendant was not warned of his constitutional rights or of his right to remain silent. During the first hearing the Assistant District Attorney informed the court of the defendant's conviction for petit larceny and false pretenses in New Jersey as a result of the theft of the article from Klein's. The motion to suppress the evidence — testimonial and real — was denied. Thereafter defendant pleaded guilty to grand larceny in the second degree, based on the theft of the 1966 red Mustang from Avis Rent-A-Car by means of a stolen credit card. It is clear that defendant was placed under arrest by a police officer, was interrogated either by the officer or while the officer for the most part stood silently by while the store detective pursued the questioning, depending upon which day's testimony of the officer is correct. It is clear also that the defendant, after being placed under arrest, was never warned of his constitutional rights or of his right to remain silent. Inculpatory statements and real evidence with respect to this crime of which he stands convicted were obtained from him. In our view Miranda v. Arizona ( 384 U.S. 436) is controlling.
Concur — Stevens, J.P., Eager, Steuer, Capozzoli and McGivern, JJ.