Opinion
March 22, 1965
In a coram nobis proceeding, defendant appeals from an order of the Supreme Court, Queens County, dated September 21, 1964, which denied without a hearing his application to vacate a judgment of the former County Court, Queens County, rendered January 7, 1958 after a jury trial, convicting him of kidnapping, robbery in the first degree, sodomy in the first degree and possession of a dangerous weapon as a misdemeanor, and imposing sentence. The judgment of conviction was previously affirmed by this court ( 10 A.D.2d 727, cert. den. 364 U.S. 888). Order reversed on the law and facts, and application remitted to the Criminal Term, Supreme Court, Queens County, for a hearing and for further proceedings not inconsistent herewith. Defendant's conviction was based, in part, upon his alleged confessions. At the trial the issue as to whether the confessions were voluntary or involuntary was submitted to the jury for its determination. The trial minutes disclose that in his jury charge the learned Trial Judge instructed the jurors that they must determine that the confessions were voluntarily made, without fear or violence, before the confessions could be taken into consideration. In the light of the recent decisions ( Jackson v. Denno, 378 U.S. 368; People v. Huntley, 15 N.Y.2d 72), it is our opinion that this application must be remitted to the trial court for further proceedings upon the issue of voluntariness, in accordance with the procedure prescribed by this court in its decisions of December 21, 1964 (see, e.g., People v. Davis, 22 A.D.2d 921), as modified and amplified by the Court of Appeals in its subsequent decision ( People v. Huntley, supra). (For appeal on a prior coram nobis application, see 15 A.D.2d 516.) Ughetta, Acting P.J., Christ, Brennan, Hill and Rabin, JJ., concur.