Opinion
March 14, 1966
In a coram nobis proceeding, defendant appeals from an order of the County Court, Nassau County, entered August 10, 1965, which, after a postconviction Huntley hearing, denied his application to vacate a judgment of the County Court, Nassau County, rendered January 17, 1961, convicting him of kidnapping and other crimes, upon a jury verdict, and imposing sentence. Order reversed and application remitted to the trial court for a Huntley hearing de novo, at which all relevant facts and circumstances on the issue of voluntariness of defendant's inculpatory statements, including those bearing on the denial of defendant's right to counsel and the right of access to him by his counsel shall be considered; and the People are directed to make available to defendant for his inspection and use on cross-examination the notes, if available, which Police Lieutenant Paige made in connection with his obtaining the oral statement from defendant. The court below, in deciding the issue of voluntariness against defendant, held that the testimony offered on his behalf to establish that the inculpatory statements were made after he had asked for and was denied the right to counsel and while his retained counsel was being denied access to him was not germane to that issue. The court also denied defendant's request that the People make available to him for inspection and use on cross-examination certain notes made by Lieutenant Paige in connection with an oral inculpatory statement obtained from defendant and as to which statement the officer testified at the hearing. In our opinion, whether defendant was denied the right to counsel or his counsel was denied access to him are factors to be considered and should have been considered on the issue of the voluntariness of the inculpatory statements obtained from defendant ( Haley v. Ohio, 332 U.S. 596; People v. Sanchez, 15 N.Y.2d 387). Moreover, in view of the fact that no claim is made that the notes sought are confidential, and the People state that there was nothing to disclose by granting an inspection nor anything to conceal by denying it, and in view of the relevancy of the notes on the subject matter of the witness' testimony, the defendant, in the interests of justice, is entitled to an inspection and use thereof ( People v. Malinsky, 15 N.Y.2d 86). Beldock, P.J., Ughetta, Hill, Rabin and Benjamin, JJ., concur.