SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT
June 24, 1968
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,
LEROY BARTON, APPELLANT
Appeal from order of Monroe County Court, denying, following a hearing, motion to vacate judgment of conviction for possession and sale of narcotics, rendered December 5, 1962.
Bastow, P. J., Del Vecchio, Marsh, Witmer and Henry, JJ.
Memorandum: The People have the burden to prove beyond a reasonable doubt that the statement was voluntarily made(People v. Williams, 28 A.D.2d 1080); and we deem it improper to recognize such burden and yet require the defendant upon the hearing to proceed first with his evidence. It was error to preclude the defendant from testifying that upon entering the police station he asked to call his attorney and was denied the privilege(People v. Donovan, 13 N.Y.2d 148; People v. Failla, 14 N.Y.2d 178). We also believe that in a hearing involving the several contentions as made by the defendant herein, the court should make findings of fact(People v. Veitch, 25 A.D.2d 494; cf. People v. Alfinito, 16 N.Y.2d 181; People v. Rivera, 21 N.Y.2d 871).
Order unanimously reversed and case remitted to Monroe County Court for a new hearing.
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