The memorandum of the majority concedes that the inculpatory statements (confessions) at issue *229herein were properly found voluntary by the trial court. (People v. Huntley, 15 N Y 2d 72.) While the rights conferred by Miranda v. Arizona (384 U. S. 436) may be evidentiary and procedural, as noted by the majority, the issue is the suppression of the statements and not the evidentiary rulings or the court’s charge upon a retrial. (In the present case there will be no jury trial.)
The ruling by the majority affects not merely the charge against the respondents herein as youthful offenders, but also those other defendants whose convictions have been reversed since Miranda. Indeed, in the present case there is an amicus curies brief on behalf of Richard M. La Belle. (See People v. La Belle, 43 Misc 2d 1002; 44 Misc 2d 324, 327; 24 A D 2d 350; 18 N Y 2d 405; 53 Misc 2d 111, 115.)
While I do not disagree with the concept that a retrial is de novo, I do not agree that it is completely de novo. (Code Crim. Pro., §| 464, 544.)
The issue before us is whether or not the ordering of a new trial necessarily includes a new Huntley hearing. Another way of stating the issue is whether or not the “ legal ” voluntariness of the confessions once established by the trial court in accordance with the Huntley rule is vacated by a subsequent ordering of a new trial for errors committed before the trier of the facts.
The adjudication of the trial court as to the question of whether or not a confession was involuntary as a matter of law is not part of the trial before the trier of the facts and is not vacated by the ordering of a new trial. As a part of the appellate process in the present case, this court held that the statements now at issue were voluntary. (26 A D 2d 736, 737.) The prior appeal to our court was not further appealed and should be final.
In People v. Huntley (15 N Y 2d 72, 77-78, supra) the Court of Appeals held that the trial court must determine voluntariness adversely to the defendant prior to submitting the statement (confession) to the trier of the facts. The factual issue of voluntariness may again be raised by the defendant before the jury if he so desires. It seems reasonable that the Huntley hearing is so separate and distinct from the trial before the trier of the facts that a trial de novo does not mandate a new Huntley hearing. In People v. McElvaine (125 N. Y. 596, 605), it was held that the ordering of a new trial for errors before the trier of the facts did not require a new arraignment for purposes of entering a plea.
It appears that the requirements of sections 464 and 544 relate to the proceedings before the trier of the facts and not *230to pretrial matters and that unless the pretrial matters are set aside upon the original appeal they are finally determined upon such appeal.
In regard to the decisions that the Miranda rule should apply only to those cases in which the trial had not yet commenced as of the date of the Miranda decision (June 13,1966), it appears that there was no intention to upset the validity of the processes of those charged with law enforcement where the validity of such process had been judicially established at or before June 13, 1966. (See Johnson v. New Jersey, 384 U. S. 719; People v. McQueen, 18 N Y 2d 337.)
In view of my opinion that the judicial 'finding of voluntariness is separate and apart from a trial before the trier of the facts and that the Miranda rule does not reach behind such a determination, it is not necessary to consider the conclusion of the majority memorandum that the appellate process concluded in this matter. In considering the question of the effect of a new trial under Johnson (supra), it is to be remembered that we are not dealing with a constitutional right of such magnitude as to vitiate judicial proceedings initiated prior to Miranda (supra). (See People v. Worley, 227 N. E. 2d 746 [Ill., 1967] ; Jenkins v. State, 230 A. 2d 262 [Del., 1967].) As stated in the case of People v. McQueen (18 N Y 2d 337, 348, 352, supra):
“ [T]he dictates of public policy, in my view, require us to extend innovations in the criminal law only as far as is absolutely necessary to protect constitutional rights. * * *
“ What is significant is that many of those defendants convicted of heinous crimes would be set free to walk the streets because their confessions would be excluded, although there was not a question at all about their guilt or about the veracity and reliability of their confessions. No good reason has been suggested for reaching such an anomalous result and, as I see it, every significant policy consideration leads to the opposite conclusion. That is undoubtedly the reason why the Supreme Court in Johnson employed the unusual language it did in suggesting a specific cut-off date.”
In sum, it does not appear that Miranda (supra) has been expressly made a part of the proceedings upon a retrial, and that such a far-reaching determination as proposed by the majority herein should not be made by an intermediate appellate court when such an express requirement has not yet been made by the final arbiters of such issues.
The order should be reversed, on the law.