Opinion
May 31, 1967
Appeal from a judgment of the County Court of Schenectady County, rendered upon a verdict, convicting defendant of the crimes of abduction, assault in the second degree and endangering the life and health of a child and imposing a sentence of imprisonment. The evidence of guilt was overwhelming; and such legal error as occurred affected no substantial right (Code Crim. Pro., § 542); but analysis of one problem presented seems advisable. At the conclusion of the proof on a pretrial Huntley hearing, the Trial Judge announced that he found "voluntary, beyond a reasonable doubt" the statement then under examination, in which the defendant admitted the complainant's presence in his automobile but asserted that, as a result of excessive drinking, his recollection was otherwise blank. The trial commenced next day. Prior to the examination of prospective jurors, defense counsel, asserting that certain newspaper publicity would prevent a fair trial, moved to adjourn the trial to the next term of the court. The denial of the motion raises the only substantial issue in the case. The publication was on an inside page of a Schenectady newspaper published that day, and was headlined: "Judge OK's Confession in Assault Case". Under the circumstances proven, the statement was inculpatory to some extent but the use of the word "confession" may have been misleading. Otherwise, the news story appears fair, and concludes with the statement that the Judge "held that Hulett's statement to the police was voluntary and that the confession would be admissible as evidence". Shortly after the decision of Jackson v. Denno ( 378 U.S. 368) and well before that of People v. Huntley ( 15 N.Y.2d 72), Judge Knight, with remarkable prescience, outlined the course that a pretrial hearing as to voluntariness should take, and, with reference to the determination thereon, stated "that the jury should have no inkling of what that determination is" and later withheld public announcement of his decision and directed that the "findings and conclusions shall not be made known to the jury to whom the question of voluntariness will be submitted on the trial for its ultimate determination." ( People v. La Belle, 44 Misc.2d 324, 326; 44 Misc.2d 327, 330; see 16 N.Y.2d 807, mot. for rearg. den. 16 N.Y.2d 993, and 24 A.D.2d 350, revd. on other grounds 18 N.Y.2d 405.) The Appellate Division, Fourth Department, specifically approved the La Belle procedure there outlined ( People v. Marturano, 24 A.D.2d 733); and in a recent case we found that "the public determinations made by the Judge on the voluntariness of the alleged statements of the defendant * * * created a reasonable probability of prejudice" and we thereupon granted a motion for change of venue. ( People v. Pratt, 27 A.D.2d 199, 202.) Thus, the Trial Judge's public announcement of his determination was error and one under no circumstances to be condoned; but in this case the record fully substantiates the respondent's contention that no prejudice ensued; and from the responses to questioning of the three jurors shown to have read the news article it satisfactorily appears that none was influenced by it; and we are satisfied that if there was any residual uncertainty, it was resolved by the court's admonitions during the selection of the jury and by the court's charge as to the jury's function in determining the voluntariness of the statement. We find no basis for any of the additional claims of deprivation of constitutional and other legal rights. Examining appellant's assignments of error in the conduct of the trial, we find none of sufficient substance to warrant reversal. Judgment affirmed. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur.