Judgment unanimously reversed on the law and facts
and a new trial granted. Memorandum: Following a hearing held outside the presence of the jury the Trial Judge held to be voluntary and admitted into evidence over the objection of defendant’s counsel an inculpatory statement made by the defendant. At the conclusion of the hearing the Judge instructed the jury as follows: “ the Court has ruled, as a matter of law, after listening to these witnesses — two police officers and one assistant district attorney, as to what transpired at the time of the alleged taking of the statement from this defendant, that the statement was a voluntary one and that all of the defendant’s legal rights were protected and properly taken into consideration. Therefore, People’s Exhibit No. 27 for identification, which was this statement, is now in evidence.” While in the charge the Judge instructed the jury that they might disregard the statement and not consider it in any way if they were satisfied it was not voluntary, he repeated his prior ruling that the statement was voluntary. The State Constitution mandates a jury trial of the issue of voluntariness (People v. Jhmtley, 15 N Y 2d 72), and the statements by the court to the jury as to the court’s findings on an issue on which they were required to pass clearly constitutes prejudicial error requiring a new trial. (Appeal from judgment of Erie County Court convicting defendant of manslaughter second degree.)
Present — Williams, P. J., Bastow, Goldman, Del Yeeehio and Marsh, JJ.