Opinion
July 5, 1966
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 29, 1964, convicting him of two counts of felonious sales of narcotic drugs (Penal Law, § 1751, subd. 1), upon a jury verdict, and imposing sentence upon him as a second felony offender. The action is remitted to the trial court for further proceedings in accordance with the decision in People v. Huntley ( 15 N.Y.2d 72). The procedure prescribed in People v. Korda ( 24 A.D.2d 577) should be followed. In the interim, the pending appeal in this court will be held in abeyance. Part of the People's proof consisted of an oral and a written statement made by the defendant after his arrest and prior to arraignment. The issue of the voluntariness of those statements was submitted by the trial court to the jury for determination together with other issues. This procedure has 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 inculpatory statements ( Jackson v. Denno, 378 U.S. 368; People v. Huntley, supra). Ughetta, Acting P.J., Christ, Hill, Rabin and Benjamin, JJ., concur.