Opinion
March 15, 1965
Appeal by defendant from a judgment of the Supreme Court, Nassau County, rendered July 8, 1963 after a jury trial, convicting him of burglary in the third degree and of petit larceny, and imposing sentence upon him as a third felony offender. Part of the People's proof consisted of a certain written statement made by the defendant upon arrest and prior to his arraignment. The issue of the voluntariness of such statement was raised during the trial by the defendant, and was submitted by the trial court to the jury for determination together with the other issues. 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). Accordingly, on the court's own motion this action is remitted to the trial court 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 and amplified by the Court of Appeals in its subsequent decision ( People v. Huntley, supra). In the interim, the pending appeal in this action will be held in abeyance. Beldock, P.J., Ughetta, Christ, Hopkins and Benjamin, JJ., concur.