People v. Sykes,
Judges Burke, Bergan and Jasen concur with Judge Breitel; Chief Judge Fuld and Judges Scileppi and Keating dissent and vote to affirm.
In this youthful offender proceeding arising out of a three-count indictment for robbery, larceny and assault, defendant appeals by permission. The Appellate Division unanimously affirmed, without opinion, a judgment of the Supreme Court, Queens County, declaring defendant a youthful offender and committing him for an indefinite term to the Reception Center at Elmira, pursuant to article 3-A of the Correction Law. Two issues are presented. First, whether the trial court should have ruled upon the voluntariness of defendant's admissions introduced at the trial. Second, whether the trial court erred in adjudicating defendant a youthful offender without expressly setting forth the particular acts, otherwise criminal, which were the basis for its determination. It is concluded that the record is deficient in both respects, and that the case should be remanded for further findings.
On April 1, 1965 a three-count indictment was returned against defendant. The indictment charged defendant with robbery, second degree, grand larceny, first degree, and assault, second degree, in connection with an alleged robbery from one Andrew Spears on February 26, 1965. Defendant was only 16 years of age when the crime was committed, and the District Attorney moved to have defendant treated under the youthful offender provisions of the Code of Criminal Procedure (§§ 913-e-913-r). The motion was granted and, on July 28, 1965, the District Attorney filed a three-count youthful offender information tracking the superseded indictment.
At the trial, Andrew Spears testified that on the evening of February 26, 1965 defendant, in the company of another person, stopped him on the street and demanded his money. Before Spears could comply, defendant struck him on the jaw, knocking him out. When Spears recovered full consciousness, he discovered that $12 were missing from his possession. Because of his dizziness, however, he could not recall whether anyone had reached into his trouser pocket. Shortly, upon recovering his senses, Spears called the police. Spears also said that he had seen defendant in the neighborhood on prior occasions.
Patrolman Burkitt, one of the officers who answered Spears' call, also testified at the trial. On the basis of a description supplied by Spears, Burkitt apprehended defendant. The arrest came after a brief chase on foot through back yards. After overtaking defendant, Burkitt asked him why he had "wanted to hit an old man like that." Defendant replied, "I hit him but I didn't mean to hurt him." A search of defendant uncovered only $2. When questioned about the other $10, defendant stated that he had given them to the "other fellow."
Defendant took the stand in his own behalf. He testified that, on the evening in question, Spears had struck him after defendant had refused to repay money he had borrowed from Spears. In self-defense, defendant pushed Spears so that he fell off a stoop. Defendant testified that this was the same account which he had given the patrolman at the time of arrest; he denied having told the officer that he had given $10 to a companion. Finally, he testified that, after being beaten at the police station house, he had told a detective: "I hit him but I didn't mean to hurt him."
After both sides had rested, defendant's counsel moved for acquittal on the ground of failure of proof. In addition, he moved, in accordance with a prior request for a pretrial confession hearing,*fn* that "any admissions or confessions be deemed to be involuntarily made by the defendant."
The trial court denied the motion:
"I heard no admissions so far as this kid goes, except a possible admission when he said, 'I hit him,' in the station house. I have no evidence of any force or violence or threats that were made that caused him to say it in the station house.
"I believe the young policeman, who testified that this fellow told him that he hit him after the policeman grabbed him, after he chased him. He said, 'What did you want to hit an old man like that for?', and he said, 'I hit him but I didn't mean to hurt him.' I believe the policeman on that.
"Your motion is denied and I don't believe a word this kid said.
"The defendant is guilty as a youthful offender."
It is evident, upon analysis, that the trial court's findings were wanting in two respects. First, there is no explicit finding that defendant's statements to the patrolman, which furnished significant proof of the crime, were voluntarily made. Instead, there are the assertions that the officer is believed and the defendant disbelieved, but it is not at all clear that the court was referring to whether defendant made the admission or whether, if made, it was voluntarily made. The court, with some ambiguity or even self-contradiction, merely found that the admission had been made to the patrolman at the scene rather than to a detective in the station house. Thus, the admission in issue was that made on the street, but the court refers only to the interview at the station house with the detective, an entirely different matter. Moreover, the court refers only to force or violence or threats -- which is not all that is involved, especially with respect to a 16-year-old youth -- and then only to negative such factors at the station house, without reference to the street scene, the situs of the admission in issue.
Under the rationale if not the precise holding of Jackson v. Denno (378 U.S. 368), the trial court in a non-jury case must make a specific finding that a confession or admission is voluntary beyond a reasonable doubt (People v. Williams, 25 A.D.2d 612; cf. People v. Sayers, 26 A.D.2d 736, 737). While a completely separate hearing on voluntariness may perhaps not be required in non-jury cases (cf. Code Crim. Pro., § 813-d, subd. 3), and that precise issue is not tendered on the present appeal, express findings are certainly needed in order to assure that the trial or hearing court has determined the issue of voluntariness without consideration of the other evidence tending to establish guilt (cf. Jackson v. Denno, 378 U.S. 368, 379, 383, 387, supra). The confusing ...