People v. Guerra 30 A.D.2d 659

Judgments of conviction of Emilio Guerra and Alfredo Rodriguez unanimously reversed, on the law, and a new trial of said defendants ordered. Judgment of conviction of defendant Eugenio Hernandez unanimously affirmed. The self-incriminating statements by Guerra and Rodriguez, to which Detective Bermudez testified, should have been excluded. These two defendants were given neither the notice prescribed by section 813-f of the Code of Criminal Procedure, nor, when arrested, the warnings enjoined by Miranda v. Arizona (384 U. S. 436). The People imply that the requirements were waived by the assertedly irregular manner of taking objection to the testimony. There was not a complete failure to object (cf. People v. Ross, 21 N Y 2d 258, 262), and although it may be that the objection could have been voiced earlier, there is no indication that unfair tactical design prompted whatever delay occurred. In our opinion it would be unjust in the case before us to allow its outcome to turn on the degree of alertness of counsel. We find without basis, also, the suggestion that the Miranda warnings may be dispensed with if admissions after arrest are elicited by deception and not by open questioning (cf. Massiah v. United States, 377 U. S. 201). People v. McQueen (18 N Y 2d 337, 346), cited in support of the suggestion, was a case to which Miranda was expressly held inapplicable, and the statement in the opinion on which the People rely must be read in that context. Accordingly, defendants Guerra and Rodiguez should be granted a new trial. In the circumstances, it is unnecessary to discuss other points pressed by them or by the People with respect to them. The clear case against Hernandez is not vulnerable to the arguments available to his codefendants. He had been given notice pursuant to section 813-f, and in the pretrial hearing which followed it was determined that his statements to Detective Bermudez were voluntarily made. Furthermore, they were made long before he was taken into custody. Concur — Botein, P. J., Capozzoli, Tilzer, McGivem and McNally, JJ.