
    The People of the State of New York, Respondent, v. Robert John Foley, Appellant.
    Argued June 8, 1960;
    decided July 8, 1960.
    
      
      Cornelius J. Carey and Harold W. Main for appellant.
    I. The confession of defendant was erroneously received in evidence. (Spano v. New York, 360 U. S. 315; People v. Leyra, 302 N. Y. 353; People v. McMahon, 15 N. Y. 384; People v. Mondon, 103 N. Y. 211; People v. Koch, 299 N. Y. 378; People v. Caralt, 135 Misc. 842; People ex rel. Moore v. Hunt, 258 App. Div. 24; People v. Ferola, 215 N. Y. 285.) II. The acts of defendant both prior and subsequent to the killing negate any intent and are consistent with an amnesia. III. The instructions to the jury as to the types of verdict were erroneous. (People v. Wallens, 297 N. Y. 57; People v. Leavitt, 301 N. Y. 113.) TV". The receipt in evidence of certain People’s exhibits was prejudicial and inflammatory.
    
      Henry A. Fischer, Jr,, District Attorney, for respondent.
    I. The confession of defendant was properly received in evidence. (Spano v. New York, 360 U. S. 315; People v. Leyra, 302 N. Y. 353; People v. McMahon, 15 N. Y. 384; People v. Mondon, 103 N. Y. 211; People v. Kennedy, 159 N. Y. 346; People v. Scully, 4 N Y 2d 453; People v. Doran, 246 N. Y. 409; People v. Trybus, 219 N. Y. 18; People v. Randazzio, 194 N. Y. 147; People v. Rogers, 192 N. Y. 331; People v. McGloin, 91 N. Y. 241.) II. The acts of defendant-appellant, both prior and subsequent to the killing, spell out only an intentional premeditated and deliberate murder, and they are totally inconsistent with an amnesia. III. The court’s instructions to the jury were full, complete, accurate and free from error. (People v. Crumble, 286 N. Y. 24.) TV". Photographs taken at the scene of the crime were properly admitted in evidence and were not prejudicial or inflammatory. (People v. Sanducci, 195 N. Y. 361; People v. Totterman, 181 N. Y. 385; People v. Ferraro, 161 N. Y. 365; People v. Fish, 125 N. Y. 136.)
   Per Curiam.

Whether or not the use at the trial of the confession sworn to before the Justice of the Peace was testimonial compulsion ” in the strict sense, its introduction in evidence in a capital case was under all the circumstances so contrary to our concepts of proper trial practice that a new trial is required. There is serious danger that prejudice resulted from the erroneous reception of this evidence. The jury may well have regarded the fact that the confession was sworn to before the magistrate in the courtroom as a virtual guarantee of its trustworthiness, as overwhelming proof that the statement contained a true account of what had happened and, indeed, the fact that it had been sworn to before a judicial officer was heavily relied upon at the trial to overcome the defendant’s repudiation of it and his claim that he had “ blacked out ” and was not aware of what he was doing when he committed the homicide.

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Judgment of conviction reversed and a new trial ordered.  