People v. Spears 26 A.D.2d 893

Judgment unanimously reversed on the law and facts and a new trial granted. Memorandum: After a preliminary hearing to determine the voluntariness of statements made by defendant to police officers while in custody the court did not follow the procedures outlined in People v. Huntley (15 N Y 2d 72) requiring a finding beyond a reasonable doubt that such statements were voluntarily made before they may be submitted to the trial jury. Furthermore, there was evidence received upon this hearing that defendant’s statements were made after he had named his attorney and after his request to see the latter had been refused. In this circumstance it was error to receive these statements upon the trial without first making a finding that defendant had not made a request to see and consult with his attorney. It is now settled that statements made by a defendant after he has asked to see his attorney may not be used against him upon the trial. (People v. Donovan, 13 N Y 2d 148, 153.) Moreover, if such a finding had been made, upon the record before us it would have been against the weight of the evidence. It was also error to receive over objection testimony given upon the trial by a police officer that a witness had previously identified defendant. ( People v. Gore, 12 A D 2d 987.) (Appeal from judgment of Erie County Court convicting defendant of assault, second degree.) Present — Bastow, J. P., Goldman, Henry, Del Vecchio and Marsh, JJ.