Opinion
July 8, 1970
MEMORANDUM BY THE COURT. Appeal from a judgment of conviction of the County Court of Delaware County, rendered March 10, 1969, upon a jury verdict of guilty of the crime of robbery in the first degree. The defendant contends that an accomplice gave certain perjured testimony. However, the record does not clearly establish perjury and the question was one for the jury as to the weight which it would give such evidence. The record establishes that the defendant's confession was voluntarily given. Assuming that a promise was made to the defendant that his girl friend would be released upon signing a confession, it does not appear that there was any violation of due process. The trial court adequately submitted to the jury all questions relating to the confession and properly instructed the jury as to the weight which should be given to the confession and the accomplice testimony. The record contains ample evidence to support the finding of the jury that the defendant was guilty beyond a reasonable doubt. The defendant attempted to challenge the validity of the indictment by alleging that one of the grand jurors might have had ill will toward him, but it appears that such motions should be made prior to indictment, and in any event, the allegations of the defendant are inadequate to raise the inference of actual malice by the particular grand juror and/or that the indictment was found upon illegal evidence. We note that the trial court did not make specific findings in regard to each issue in the Huntley hearing as it should have done. However, the record of the Huntley hearing establishes that the Trial Judge fully and independently resolved the issues against the accused and under such circumstances it was proper to submit the issue to the trial jury as to voluntariness. Judgment affirmed. Herlihy, P.J., Aulisi, Staley, Jr., Cooke and Sweeney, JJ., concur in memorandum by the court.