Opinion
November 17, 1967
Appeal from a judgment of conviction of the County Court, Tompkins County, of the crime of manslaughter in the second degree (Penal Law, § 1052). The judgment of conviction must be reversed and a new trial ordered. On the trial the District Attorney sought to introduce into evidence a statement made by appellant about midnight December 17, 1965, the night the victim died. Appellant's attorney objected to its introduction on the ground that it was not voluntary. At this juncture the District Attorney stated that the court had previously determined that the statement was voluntarily made and that the only question for the jury was the weight to be given it. The Trial Judge concurred in the District Attorney's position and stated three times before the jury that he had already determined that it was voluntary. Appellant's attorney properly excepted to the court's ruling. Of course, the trial court's determination of voluntariness at the Huntley hearing not only did not preclude submission of that issue to the jury, but was merely a required preliminary to submission of the question as an issue of fact to the jury ( People v. Huntley, 15 N.Y.2d 72; People v. Stewart, 25 A.D.2d 483). Moreover, the finding of the court at the Huntley hearing should not have been revealed to the jury ( People v. Pratt, 27 A.D.2d 199). Finally, we note that the questions as to whether the alleged homicide was committed in the heat of passion and as to whether there was sufficient evidence that death resulted from a criminal act are very close and should be carefully handled on the retrial. Judgment reversed, on the law, and a new trial ordered. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum Per Curiam.