People v. McElroy

26 A.D.2d 598, 271 N.Y.S.2d 391, 1966 N.Y. App. Div. LEXIS 3859

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 28, 1966
• Status: Published

Opinion

Aulisi, J.

Appeal by defendant from an order

of the County Court of Albany County which upon reargument denied without a hearing a petition for a writ of error coram nobis. Defendant was convicted of murder in the second degree. During his trial certain statements made by defendant and two question and answer statements given to the District Attorney and taken down by the court stenographer were received in evidence. Defendant’s counsel objected to the admission of these statements and the trial court charged the jury that they were to determine if the statements constituted confessions. The District Attorney argues that the objections taken by defendant’s counsel did not raise the issue of voluntariness and that there is no need for a Huntley hearing since the statements were not treated as confessions. In his petition defendant alleges that the statements were all involuntary. The question and answer statements to the District Attorney were certainly in the nature of a confession and although there was no objection specifically made upon the question of voluntariness the objection was made to introducing them into evidence at the trial. In addition, the trial court charged the jury as to voluntariness and both these acts would be sufficient to bring defendant within the rule of People v. Huntley (15 N Y 2d 72). It is our opinion that defendant ■ is entitled to a hearing on his petition. Order reversed, on the law, and matter remanded for a hearnig on the issue of the voluntariness of petitioner’s confession. Herlihy, J. P., Reynolds, Taylor and Staley, Jr., JJ., concur.