Opinion
July 13, 1984
Appeal from the Supreme Court, Monroe County, Pine, J., Boomer, J.
Present — Dillon, P.J., Doerr, Green and O'Donnell, JJ.
Judgment unanimously affirmed. Memorandum: The suppression court erred in stating that at a hearing to be held during the course of the trial, defendant would have the burden of proving that his prior statement was involuntary ( People v. Weaver, 49 N.Y.2d 1012; People v. Holland, 48 N.Y.2d 861). At the trial, before a different Judge, defendant did not renew his motion for a hearing on the voluntariness issue and he now claims that the erroneous ruling of the suppression court discouraged him from testifying on his own behalf. The statement of the suppression court was not binding on defendant ( People v. Palumbo, 79 A.D.2d 518, affd 53 N.Y.2d 894) and, in any event, at trial, counsel stated that defendant would not testify because of the court's Sandoval ruling.