Opinion
November 16, 1971
Appeal by defendant from a judgment of Supreme Court, Bronx County, rendered January 23, 1970, resentencing defendant, nunc pro tunc (pursuant to a conviction, after trial before Stackell, J. and a jury, on July 27, 1944, of the crime of murder in the first degree), to State prison for his natural life. The appeal to this court will be held in abeyance, and the action will be remitted to the trial court for further proceedings not inconsistent herewith. At the trial, part of the People's proof consisted of statements made by defendant to the police and an Assistant District Attorney. The issue of the voluntariness of those statements was submitted to the jury for determination together with other issues. This procedure has been held to be in violation of a defendant's constitutional rights; and that a defendant is entitled to a separate evidentiary hearing on the question of the voluntariness of any confession. ( Jackson v. Denno, 378 U.S. 368; People v. Huntley, 15 N.Y.2d 72.) Accordingly this action is remitted to the trial court for further proceedings in accordance with People v. Huntley ( supra); and in the interim disposition of the appeal will be held in abeyance. The procedure prescribed in People v. Korda ( 24 A.D.2d 577) should be followed.
Concur — Stevens, P.J., Capozzoli, McGivern, McNally and Steuer, JJ.