Opinion
November 16, 1964
Appeal by defendant from a judgment of the former County Court, Queens County, rendered June 14, 1961 after a jury trial, convicting him of attempted robbery in the first degree, attempted grand larceny in the second degree and assault in the second degree, and imposing sentence. Judgment affirmed. It is the defendant's sole contention on this appeal that the trial court committed prejudicial error in failing to charge the jury that it must exclude from consideration any statements which he may have made as the result of physical coercion. In our opinion, this contention is without merit. It is clear from the record that the statements referred to by the defendant were not confessions or even admissions (Fisch, New York Evidence, § 855, p. 421), since the statements indicated that he did not commit the crimes charged. Exculpatory statements, denying guilt, cannot be confessions ( People v. Kingston, 8 N.Y.2d 384, 388). Under the circumstances, the declarations made by the defendant denying any participation in the criminal acts charged were not confessions, and therefore do not come within the rule that confessions must be voluntary to be admissible ( People v. Reilly, 224 N.Y. 90; Bruner v. People, 113 Col. 194; 3 Wigmore, Evidence [3d ed.], § 821). The purpose of the defendant's statements was to show himself innocent, so that in point of fact he had not been induced, by the use of force, to relate what was untrue, to his prejudice. Hence, there was no basis for invoking the exclusionary rule. Beldock, P.J., Kleinfeld, Brennan, Rabin and Hopkins, JJ., concur.