Opinion
December 3, 1970
Appeal from the Erie County Court.
Present — Goldman, P.J., Marsh, Gabrielli, Moule and Henry, JJ.
Judgment reversed on the law and facts and a new trial granted. Memorandum: In the course of investigating a burglary, defendant was arrested without a warrant by the Bridgeton, New Jersey, police at the request of the Tonawanda city police who "wanted to talk to" the defendant. During the questioning, defendant made certain admissions which were incorporated into a written statement. Two days later, and while still in custody in New Jersey, the police obtained another statement from defendant which was strikingly similar to the first. Upon the trial both statements were admitted in evidence, over defendant's objection. The judgment of conviction must be reversed. There was no probable cause for the arrest and it cannot be questioned that defendant was illegally detained at the time the first statement was obtained, rendering it inadmissible (cf. Morales v. State of New York, 396 U.S. 102; Davis v. Mississippi, 394 U.S. 721; People v. Herbison, 22 N.Y.2d 946). The dissenters have no quarrel with this conclusion as to the first statement. It is urged that the second statement was admissible since the officers had probable cause to detain defendant based upon the information obtained via the first statement. With this, we disagree. It is impermissible to "use the fruits of such unlawful conduct to secure a conviction" ( Walder v. United States, 347 U.S. 62, 64-65) and "fruits" has been defined to include confessions ( People v. Rodriguez, 11 N.Y.2d 279, 286). Under the circumstances here present, the admissibility of the second statement is proscribed by the "poisonous tree" doctrine of Wong Sun v. United States ( 371 U.S. 471). All concur, except Moule and Henry, JJ., who dissent and vote to affirm the judgment in the following memorandum: While defendant's initial arrest was unlawful because it was based on suspicion, defendant admitted that he had violated his parole on a breaking and entering conviction by going outside of New Jersey and also by committing a burglary. Although these admissions may not be admissible in evidence against him, they constituted probable cause to detain him. Two days after his initial arrest, the defendant was fully advised of his rights; no coercion, duress or force was used; defendant said he did not want a lawyer and gave a written statement. Where an inadmissible statement does not dominate the mind of the defendant and induce him to make a later statement, the later statement is admissible if it is voluntary. ( People v. Stephen J.B., 23 N.Y.2d 611.) The record supports the finding that the second confession was voluntary and that determination should not be disturbed ( People v. Leonti, 18 N.Y.2d 384), and therefore the admission of the first statement did not influence the result and was harmless error beyond a reasonable doubt. ( People v. Schwartzman, 24 N.Y.2d 241.)