Opinion
June 29, 1967
Appeal from the Erie County Court.
Present — Williams, P.J., Bastow, Del Vecchio and Marsh, JJ.
Case held, decision reserved, and matter remitted to Erie County Court for further proceedings in accordance with the following memorandum: This case was tried prior to the decision in Jackson v. Denno ( 378 U.S. 368) and People v. Huntley ( 15 N.Y.2d 72). The trial court, however, conducted during the course of the trial and in the absence of the jury an examination at which several witnesses testified on behalf of the People and the defendant testified in his own behalf. This examination centered upon the admissibility of a prearraignment statement made by defendant. Collateral issues were tried relating not only to the voluntariness of the statement but also to appellant's claimed requests for counsel and as to the precise time the statement was taken. The trial court at the conclusion of the hearing, without making any findings, received the statement in evidence and subsequently instructed the jury on the issue of voluntariness. We conclude that People v. Huntley ( supra) mandates a new hearing on the issue of voluntariness, if desired and demanded by either party, at which all pertinent and relevant proof bearing on that issue may be presented anew by both parties. Thereafter, the court should make appropriate findings. In the event no such new hearing is had, the court shall proceed to make such findings upon the present record. By receiving the statement in evidence the court necessarily found that defendant had not requested the aid of an attorney. All concur, except MARSH, J., who dissents in part in the following Memorandum: Evidence presented on the voir dire examination as to the circumstances surrounding the taking of the statements from the defendant which were received on the trial requires a finding by the court not only as to voluntariness but also independently 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. (See Jackson v. Denno, 378 U.S. 368; People v. Goodman, 27 A.D.2d 692; People v. Neureuter, 26 A.D.2d 899; People v. Spears, 26 A.D.2d 893; People v. Michalski, 26 A.D.2d 766.) The People and defendant should be permitted to put in additional proof on those issues if either side so desires. ( People v. Huntley, 15 N.Y.2d 72.)