I cannot agree that Miranda should apply upon the retrial of a case, notwithstanding the fact that *231the trial will be held after June 13, 1966, the effective date of Miranda. There is no sound basis or logical reason for conducting a retrial under rules different from those prevailing when the cases were tried the first time. While I am not unmindful that under section 464 of the Code of Criminal Procedure, the granting of a new trial places the parties ‘ ‘ in the same position as if no trial had been had ”, it does not perforce become a new case for it is but a continuation of the original case until the judgment is final. Reference to Johnson v. New Jersey (384 U. S. 719, 721) sustains this view when the court stated “ We hold further that Miranda applies only to cases [emphasis supplied] in which the trial began after the date of our decision one week ago.” (June 13, 1966.)
In adopting a similar view, the Supreme Court of Delaware in Jenkins v. State (230 A. 2d 262, 274 [Del., 1967]), said “ The following statements in J ohnson support our view: ‘ Future defendants [emphasis supplied] will benefit fully from our new standards governing in-custody interrogation, while past defendants may still avail themselves of the voluntariness test. ’ ” As logically expressed in People v. Worley (227 N. E. 2d 746, 750 [Ill., 1967]), it is clear that the intent of Johnson, as hereinabove set forth, is reinforced by the fact that “ the court there made Miranda applicable only to cases commencing subsequent to June 13, 1966, expressly excluding those in which direct appeals were pending at the time Miranda was announced. This was in direct contrast to its action in Linkletter v. Walker, 381 U. S. 618 * * *, in which the court, while declining to apply Mapp v. Ohio, 367 U. S. 643 * * ®, retroactively, held it applicable to all cases in which the State court decision had not become final prior to announcement of Mapp.” In addition, the disruptive effect upon the administration of justice is somewhat similar to that which was present in Johnson, all of which further leads us to the conclusion that the Supreme Court did not intend that Miranda should apply to the retrial of cases such as the one with which we are now concerned. The dictates of justice, fair play and public policy require us to extend innovations in the criminal law only so far as is necessary to protect constitutional rights, none of which is being violated by this determination. The holding in Miranda neither requires nor deserves any further application than is herein explained and I can find no persuasive reason to extend the holding to cases to be retried for they are not “ original ” trials as must have been the intent expressed by the court in J ohnson.
*232Upon the facts in this case, it is abundantly logical and fair to all that we conclude that Miranda is inapplicable to retrials in cases which were originally tried prior to June 13, 1966.
The order should be reversed on the law.
Gibson, P. J., Aulisi and Staley, Jr., JJ., concur in opinion Per Curiam; Herlihy and Gabrielli, JJ., dissent and vote to reverse in separate opinions, in which each concurs.
Order affirmed.