Opinion
December 21, 1964
On May 4, 1964 the appeals by the above three defendants from judgments of the Supreme Court, Nassau County, entered after a joint jury trial, were argued and submitted to this court for decision. The appeal of the defendant Moll is from a judgment rendered January 5, 1962 upon the jury's verdict, convicting him of murder in the first degree while engaged in the commission of a felony, and of other crimes, and sentencing him to life imprisonment on the murder count and imposing additional terms of imprisonment on the other counts. The appeals of the defendants Closter and Stanbridge are from judgments rendered upon the jury's verdict convicting them of manslaughter in the first degree and of other crimes, and sentencing them to serve a term of 10 to 20 years on the manslaughter count and imposing additional terms of imprisonment on the other counts. The conviction of the three defendants was based, in part, upon their alleged confessions. Upon the trial they contended that their confessions had been coerced by the police and were involuntary. The issue as to whether the confessions were voluntary or involuntary was submitted to the jury. In the light of the subsequent decision rendered June 22, 1964 by the Supreme Court of the United States, submission of such issue to the jury was error; the issue "should have been determined in a proceeding separate and apart from the body trying guilt or innocence" ( Jackson v. Denno, 378 U.S. 368). We have construed this decision to be applicable to a pending appeal where the voluntariness of the confession was contested and was put in issue at the trial ( People v. Hovnanian, 22 A.D.2d 686 [Oct. 5, 1964]). Accordingly, these appeals will be held in abeyance; and on the court's own motion the action is remitted to the Criminal Term, Supreme Court, Nassau County, for further proceedings not inconsistent herewith. A separate trial should be accorded promptly to the defendants upon the issue of the voluntariness of their confessions. Such trial should be held de novo before the court alone, without a jury. At the conclusion of the trial, the Justice presiding shall render promptly his decision setting forth specifically his findings of fact upon the issue; and such decision should be based exclusively on the evidence adduced upon such trial. The trial should also be conducted in accordance with such further or different procedures and requirement as may be prescribed by the Court of Appeals of this State in any decision rendered by it prior to the trial court's decision on the issue of voluntariness. Within 30 days after the rendition of the trial court's decision, a supplemental printed or typewritten record, consisting of the transcript of the stenographic minutes of the separate trial and of the court's decision and findings, should be filed and served by the District Attorney of Nassau County. Within 20 days after such filing, the appellants shall serve and file printed or typewritten supplemental briefs; and within 15 days thereafter the District Attorney shall file and serve a supplemental brief. [If appellants' briefs be typewritten, six copies are required to be filed and one copy served.] Thereupon, the Clerk of this court will place the appeals on the calendar at the next succeeding term for reargument. The appeals will be decided on the basis of the original and supplemental records and briefs. Beldock, P.J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.