The People of the State of New York, Respondent, v. Anibal Calo, Appellant, 22 A.D.2d 925

Motion by defendant, whose appeal from a judgment of conviction rendered after a jury trial is now pending in this court: (

a) to remand the action to the County Court, Suffolk County, for a trial as to the voluntariness of two written statements or confessions (People’s Exhibits 9, 11) allegedly given by defendant; and (

b) to enlarge defendant’s time to perfect his appeal. This motion is made necessary because of the recent decision of the Supreme Court of the United States (Jackson v. Denno, 378 U. S. 368). It appears that the issue as to the voluntariness of defendant’s confession was raised at the trial and submitted to the jury. Accordingly, the motion is granted and the action is remitted to the County Court, Suffolk County, for further proceedings not inconsistent herewith. A separate trial should be accorded promptly to the defendant upon the issue of the voluntariness of his confession.

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 upon the issue. The 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 requirements 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 upon the issue of voluntariness.

Within 20 days after the trial court’s decision upon the issue of voluntariness, a supplemental record, consisting of the typewritten or printed 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.

Within 30 days thereafter, the defendant shall serve and file his typewritten or printed brief or supplemental brief; and within 20 days thereafter the District Attorney shall serve and file his brief or supplemental brief. [If defendant’s brief or supplemental brief be typewritten, six copies are required to be filed and one copy served.] The appeal is directed to be placed on the calendar for the April Term, commencing March 29, 1965. Beldock, P. J., Ughetta, Kleinfeld, Christ and Brennan, JJ., concur.