Opinion
April 27, 1972
Appeal from a judgment of the Supreme Court, Greene County, rendered upon a verdict convicting the appellant of the crime of felony murder (Penal Law, § 125.25). An important portion of the State's case consisted of the testimony of Walter Weems and Ralph Valentine as to statements made to them by appellant while all were lodged as prisoners in Dutchess County Jail. Prior to the testimony of both witnesses, the appellant moved for a Huntley hearing to determine if Weems and Valentine were, in fact, police agents, thus raising the question of the admissibility of their testimony (see People v. Robinson, 13 N.Y.2d 296). The Trial Judge denied these motions, but offered the appellant an opportunity to inquire as to the witnesses' status through a voir dire in the presence of the jury. Appellant rejected this opportunity. Although it seems unlikely on the instant record that Weems and Valentine were police agents, appellant was entitled in each instance to a Huntley hearing as requested ( People v. Mirenda, 23 N.Y.2d 439, 449). Clearly, the testimony of Weems, which may be important in establishing the underlying felony upon which the charge of felony murder is premised, cannot be considered to have been harmless error if improperly admitted (cf. People v. Savino, 22 N.Y.2d 732). Nor can the testimony of Valentine, which added credence to Weem's testimony, be so considered. Accordingly, the case must be remanded to the trial court with directions to hold a Huntley hearing as to the issue of whether Weems and Valentine were, in fact, police agents and to make an appropriate decision on this issue which shall contain specific findings of fact and conclusions of law (see People v. Veitch, 25 A.D.2d 494). We pass on no further issues raised in the instant appeal. Determination of appeal withheld and case remitted to the Supreme Court, Greene County, for further proceedings not inconsistent with the decision herein. Herlihy, P.J., Staley, Jr., Greenblott, Cooke and Reynolds, JJ., concur.