People State New York v. Fernando Rodriguez

[47 A.D.2d 962 Page 962] Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 3, 1973, convicting him of dangerous drug in the fourth and sixth degrees, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. Defendant raised no factual questions on this appeal and none were considered. Defendant's motion to suppress the use of his confession was denied following a Huntley hearing. At the trial, defense counsel objected to the introduction of the confession into evidence and subsequently requested a jury charge on the issue of the voluntariness of the confession and excepted to the denial of this request. It is thus clear that the issue of voluntariness was presented at the trial, and the question of the trial court's refusal to present the issue to the jury has been preserved for review (People v Cefaro, 23 N.Y.2d 283; People v Mials, 27 A.D.2d 944). - In the circumstances of this case, the issue of voluntariness should have been submitted to the jury, despite the fact that it had been passed upon preliminarily by the hearing court (People v Cefaro, supra). The failure to do so is reversible error (People v Mials, supra; cf. People v Wheeler, 40 A.D.2d 348, cert den 412 U S [47 A.D.2d 962 Page 963931]