Opinion
July 10, 1967
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered June 6, 1966. Action remitted to Criminal Term for further proceedings consistent herewith. In our opinion, the omission to advise defendant, prior to his interrogation by the Assistant District Attorney, that (a) defendant had the right to counsel and (b) if he could not afford counsel, one would be assigned to represent him, was a relevant factor to be considered on the issue of the voluntariness of the statements elicited from defendant during said interrogation ( Johnson v. New Jersey, 384 U.S. 719; People v. McQueen, 18 N.Y.2d 337). Absent a consideration of such factor at the Huntley hearing conducted prior to the trial, we deem it necessary that a new determination be made with respect to the voluntariness of said statements by the Justice who presided at said Huntley hearing, after he shall have specifically considered the effect, if any, of such omission to advise defendant, on the Justice's prior determination of voluntariness. Pending such new determination, the disposition of this appeal will be held in abeyance. Such new determination may be made on the record of the testimony previously adduced at the Huntley hearing or upon such record and any additional proof adduced upon a further hearing, if the Justice be so advised. Beldock, P.J., Christ, Brennan, Benjamin and Munder, JJ., concur.