Opinion
March 15, 1965
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Queens County, entered September 28, 1964, which denied without a hearing his application to vacate a judgment of the former County Court, Queens County, rendered July 15, 1959 after a jury trial, convicting him of robbery in the first degree, and imposing sentence. The judgment of conviction was previously affirmed by this court ( 19 A.D.2d 696). Order reversed on the law and the facts, and application remitted to the Supreme Court, Queens County, for further proceedings in accordance herewith. Defendant's conviction was based in part upon his confession. At the trial the defendant had objected to the admission of the confession; the question of its voluntariness was one of the issues raised; and that issue, instead of being tried separately and preliminarily by the court, was submitted to the jury for its determination together with the other issues in the case. Such procedure has now been held to be in violation of the defendant's constitutional rights; he was entitled to a separate trial by the court alone of the issue as to the voluntariness of his confession ( Jackson v. Denno, 378 U.S. 368; People v. Huntley, 15 N.Y.2d 72). Hence, this coram nobis application must now be remitted to the court below 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 by the Court of Appeals in its subsequent decision ( People v. Huntley, supra), insofar as such procedure is here applicable. Ughetta, Acting P.J., Christ, Brennan, Hill and Rabin, JJ., concur.