Opinion
February 1, 1965
Appeal by defendants Moccio and Cerullo from a judgment of the Supreme Court, Nassau County, rendered August 12, 1963 after a jury trial, convicting each of them of burglary in the second degree, robbery and grand larceny (both in the first degree) and of assault in the second degree, and imposing sentences upon the defendant Moccio as a fourth felony offender and upon the defendant Cerullo as a first felony offender. Part of the People's proof consisted of certain written statements made by the defendants upon arrest and prior to the arraignment. The issue of the voluntariness of such statements was not only raised during the trial by the defendants but they also moved for a separate hearing by the court, in the absence of the jury, upon such issue. The trial court denied the motion and thereafter submitted the issue of voluntariness to the jury for its determination. In the light of the recent decision of the Supreme Court of the United States ( Jackson v. Denno, 378 U.S. 368), on this court's own motion this action is remitted to the trial court for further proceedings in accordance with the procedure prescribed by this court in its decisions of December 21, 1964 (see, e.g., People v. Davis, 22 A.D.2d 921), as modified and amplified by the Court of Appeals in its subsequent decision of January 7, 1965 ( People v. Huntley, 15 N.Y.2d 72). In the interim, the pending appeal in this action will be held in abeyance. Beldock, P.J., Ughetta, Christ, Hill and Rabin, JJ., concur.