Opinion
June 17, 1957
Appeal from an order of the County Court, Kings County, granting respondent's motion to dismiss, for insufficiency of proof before the Grand Jury, an indictment filed on May 15, 1942 charging him with murder in the first degree. Order reversed on the law, motion denied, and respondent remanded to the County Court, Kings County, for further proceedings as indicated herein. Respondent was remanded by the United States District Court for the Northern District of New York for such other and further proceedings as justice might require upon the outstanding indictment. As it is conceivable, however unlikely, that on a new trial proof independent of respondent's confessions may be adduced which will be sufficient to warrant his conviction, there should be a new trial (cf. People v. Valletutti, 297 N.Y. 226). The proof before the Grand Jury was sufficient. The indictment, therefore, is not subject to dismissal for insufficiency of proof before that body, whatever the defense may offer at the new trial ( People v. Donahue, 309 N.Y. 6, 7). It should be noted that upon the new trial of the respondent, as well as of his codefendant, Bonino, respondent's confessions must be excluded, irrespective of any proof which might otherwise be adduced to show that such confessions had, in fact, been voluntary ( People v. Bonino, 1 N.Y.2d 752; cf. People v. Rudish, 294 N.Y. 500). Nolan, P.J., Beldock, Murphy, Ughetta and Kleinfeld, JJ., concur.