Summary
In People v. Grillo (176 AD2d 346 [2d Dept 1991]), the defendant was therefore held entitled to a hearing to determine the voluntariness of a statement he claimed had been physically beaten and coerced out of him by the complaining witness and a relative.
Summary of this case from People v. BarhamOpinion
September 30, 1991
Appeal from the County Court, Suffolk County (Namm, J.).
Ordered that the matter is remitted to the County Court, Suffolk County, to hear and report on the voluntariness of the statements made by the defendant to private citizens pursuant to People v. Huntley ( 15 N.Y.2d 72), and the appeal is held in abeyance in the interim. The County Court, Suffolk County, is to file its report with all convenient speed.
Prior to trial, the defendant moved, inter alia, to suppress certain statements made at the home of the complainant where the alleged burglaries took place. The defendant argued that his statements were made under duress after he had been physically beaten and threatened by the complaining witness and a relative. The court denied the application for a Huntley hearing after noting that the alleged threats had been made by civilians and not by police officers.
Evidence of any statement made by the defendant with respect to his participation, or lack of participation in the offense charged, may not be received in evidence against him if such statement was "involuntarily made" (CPL 60.45). An "involuntarily made" statement is one obtained from the defendant "[b]y any person by the use or threatened use of physical force upon the defendant" (CPL 60.45 [a] [emphasis supplied]). Although the trial court submitted the issue of voluntariness to the jury, the defendant was entitled to a pretrial hearing and judicial determination that the statements were voluntary beyond a reasonable doubt before their submission to the trial jury (see, People v. Huntley, 15 N.Y.2d 72, supra; see also, People v Chennault, 20 N.Y.2d 518; People v. Crowder, 119 Misc.2d 467). Accordingly, we hold the appeal in abeyance and remit the matter for a Huntley hearing.
The recent decision by the Court of Appeals in People v. Burts ( 78 N.Y.2d 20), does not apply to this case. The Burts case established that a conviction must be reversed and a new trial ordered, instead of holding the appeal in abeyance and remitting the matter for a hearing, when an independent source for eyewitness identification had not been proved prior to the trial that resulted in the conviction under review. A different rule applies to the failure to establish the voluntariness of the confession at a pretrial suppression hearing. Both the United States Supreme Court and the New York Court of Appeals have approved of the combined remedy of holding the appeal in abeyance and remitting the matter for a posttrial hearing to afford the defendant his right to a reliable judicial determination on the issue of voluntariness of a confession (see, Jackson v. Denno, 378 U.S. 368; People v. Huntley, supra; People v. Concepcion, 169 A.D.2d 944). Bracken, J.P., Sullivan, Miller and Ritter, JJ., concur.