In my opinion, the defendant’s guilt was clearly established. The majority is of the opinion that the trial court erred in refusing to permit a voir dire examination with respect to the oral confession, although it allowed such procedure with respect to the written confession.
The rule is that a preliminary examination as to the voluntary nature of a confession should be allowed with respect to an oral as well as to a written confession (People v. Giro, 197 N. Y. 152; People v. Holland, 244 App. Div. 287). However, in the case at bar, the trial court in effect permitted such preliminary examination with respect to both the oral and written confessions.
It clearly appears that the oral confession was followed immediately by its reduction to writing. There was thus no lapse of time between the oral and written confessions. It is not claimed that one beating preceded and induced the oral confession and that another, separate beating induced the written confession. The defendant’s claim is that the same beating preceded and coerced both. Therefore, the voir dire examination which was allowed as to the written confession was also the required voir dire examination as to the oral confession; and hence the defendant was not prejudiced.
My colleagues are of the further opinion that it was error to refuse to allow defendant’s counsel to show that defendant had complained of the alleged beating to his father on January 1, 1961, and to his mother on January 4,1961. Those are the dates *250on which the parents first saw their son, the defendant; the beating allegedly occurred on December 31,1960. Although evidence of complaints of police brutality at the first opportunity is material and relevant, and the refusal to receive such evidence is error (People v. Alex, 260 N. Y. 425), there was no error here. The record reveals that the first opportunity defendant had to complain was at the Meadowbrook Hospital on December 81; and Doctor Abbate (there in attendance) testified that defendant in fact did then complain about having been beaten. Another complaint to his father a day later, or to his mother three days later, does not add any substance to the first complaint, but is cumulative merely.
Kleineeld, Christ and Hopkins, JJ., concur with Hill, J.; Beldock, P. J., dissents and votes to affirm, with opinion.
Judgment reversed on the law and on the facts, and a new trial ordered.