People v. Mulvey , 1 A.D.2d 541 ( 1956 )

Per Curiam.

During the trial the District Attorney offered in evidence an alleged written confession of the defendant-appellant. The defendant’s counsel and his associate objected to it on various grounds, one of which was that the statement of the defendant was not given voluntarily but was obtained ‘ ‘ under pressure by a man who has not been sworn here as a witness. We have not had an opportunity to confront him.” A preliminary hearing on admissibility was requested, which was summarily denied. An appropriate exception was taken.

When “ a written confession of guilt is offered against a person on trial for a criminal offense, and he objects to the same and offers to prove to the court that it was procured from him by threats, or promises, or under such circumstances as would render it incompetent as evidence, it is error to receive the paper without first hearing the proof offered and deciding upon the competency of the confession as evidence against the party making it.” (People v. Fox, 121 N. Y. 449, 453-454; see, also, People v. White, 176 N. Y. 331; People v. Rogers, 192 N. Y. 331; People v. Nunziato, 233 N. Y. 394; People v. Doran, 246 N. Y. 409; People v. Pecoraro, 177 App. Div. 803, and People v. Fiori, 123 App. Div. 174.)

There is nothing in this case to take it out of the general rule and the refusal of the Trial Judge to grant the examination requested was prejudicial error.

Furthermore, during the trial the Judge made numerous remarks to counsel and asked various questions of witnesses and conducted himself generally in a manner that undoubtedly indicated to the jury that he was of the opinion that the defendant was guilty. His conduct and remarks were prejudicial. (People v. Fiori, supra.)

The judgment of conviction should be reversed and a new trial ordered.