Opinion
October 27, 1966
Appeal from the Erie County Court.
Present — Williams, P.J., Goldman, Henry, Del Vecchio and Marsh, JJ.
Case held and matter remitted to Erie County Court, GAUGHAN, J., for further proceedings in accordance with the Memorandum: Memorandum: At a preliminary hearing conducted by the Trial Judge evidence was presented as to circumstances surrounding the taking of a statement from the defendant by police officers which required a finding by the Trial Judge not only as to voluntariness but also as to whether the defendant incriminated himself while being interrogated by the police in the absence of counsel after he had requested the aid of an attorney. ( People v. Sanchez, 15 N.Y.2d 387.) We remit the case to the County Court solely for a finding and determination upon the testimony presented at the preliminary hearing as to whether the defendant gave the statement offered in evidence while being interrogated by the police in the absence of counsel after he had requested the aid of counsel. (See People v. Michalski, 26 A.D.2d 766.)