
    The People of the State of New York, Respondent, v. Leland V. Baker, Appellant.
   Judgment unanimously reversed and new trial granted. Memorandum: Appellant has been convicted following a jury trial of burglary, third degree and petit larceny. One of the factual issues litigated at the trial was whether defendant had broken into a house or was found therein after having unlawfully entered. Defendant made certain oral admissions to a police officer. Following a pretrial hearing the court held that certain statements so made were involuntary and not admissible at the trial. Other oral statements, however, were held to have been voluntarily made and admissible. These were clearly inculpatory on the issue of unlawful entry although they may have been exculpatory on the issue as to whether or not defendant broke into the house. The trial court, however, failed to submit to the jury the issue of voluntariness of these oral admissions. This was error that requires a new trial. (People v. Huntley, 15 N Y 2d 72, 78; People v. Stewart, 25 A D 2d 483). (Appeal from judgment of Erie County Court convicting defendant of burglary, third degree, and petit larceny.)

Present — Bastow, J. P., Goldman, Henryj Del Vecehio and Marsh, JJ.  