
    The People of the State of New York, Respondent, v. Henry Lee Sykes, Appellant.
   — Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered June 9, 1970, upon indictment No. 510/69, convicting him of attempted assault in the first degree and possession of weapons, etc., as a felony, upon a jury verdict, and imposing sentence. Judgment affirmed. No opinion. Latham, Shapiro and Brennan, JJ., concur; Gulotta, J., dissents and votes to reverse the judgment and to order a new trial, with the following memorandum, in which Rabin, P. J., concurs: In my opinion, reversible error was committed by the Trial Justice in failing to submit to the jury the issue of the voluntariness of an incriminating statement made by defendant, offered at the trial, notwithstanding that the issue had preliminarily been passed upon by the trial court in the jury’s absence (People v. Huntley, 15 N Y 2d 72; N. Y. Const., art. I, § 2). At the trial, counsel for defendant conducted an extensive examination of three of the defense witnesses on the issue of defendant’s physical condition at the time he made the incriminating statement. Thereby, the question of voluntariness was put in issue at the trial; and the right to have that issue submitted to the jury was not waived by the failure of counsel to take exception to the charge or request addition of the issue to the charge (People v. Mials, 27 A D 2d 944; People v. Cefaro, 23 N Y 2d 283, 288).  