
    The People of the State of New York, Respondent, v. Francis Henry Bloeth, Appellant.
    Argued January 9, 1961;
    decided March 2, 1961.
    
      
      John B. Clarke, Peter V. Snyder and Morton M. Sider for appellant.
    I. The verdict should be set aside because defendant should not have been tried in Suffolk County. (People v. Broady, 195 Misc. 349; People v. Fernandez, 195 Misc. 95; People v. Nathan, 139 Misc. 345; People v. McLaughlin, 150 N. Y. 365.) II. The verdict should be set aside because defendant’s confession was obtained in violation of section 395 of the Codo of Criminal Procedure. (People v. Mummiani, 258 N. Y. 394; McNabb v. United States, 318 U. S. 332; Upshaw v. United States, 335 U. S. 410; Stein v. New York, 346 U. S. 156; Spano v. New York, 360 U. S. 315; People v. Leyra, 302 N. Y. 353.) III. The verdict should be set aside because the court misquoted section 1120 of the Penal Law, and erroneously charged the jury with respect to the defense of insanity. (Kleinfeld v. Roburn Agencies, 270 App. Div. 509; People v. Sherwood, 271 N. Y. 427; People v. Kelly, 302 N. Y. 512.) IV. The verdict should be set aside because the Trial Judge erroneously charged the jury that defendant had to prove beyond a reasonable doubt that the confession was involuntary. (People v. Russell, 266 N. Y. 147; People v. Downs, 123 N. Y. 558; People v. Weiner, 248 N. Y. 118; People v. Doran, 246 N. Y. 409; People v. Rogers, 192 N. Y. 331; People v. Farrell, 2 AD 2d 797.)
    
      John P. Cohalan, Jr., District Attorney, for respondent.
    I. The motion for a change of venue was properly denied. II. The confession of defendant-appellant was obtained in full compliance with section 395 of the Code of Criminal Procedure. (McNabb v. United States, 318 U. S. 332; Upshaw v. United States, 335 U. S. 410; Spano v. New York, 360 U. S. 315; People v. Leyra, 302 N. Y. 353; Stein v. New York, 346 U. S. 156.) III. The jury was not misled by the court’s charge with respect to the insanity statute. (People v. Sherwood, 271 N. Y. 427; People v. Schmidt, 216 N. Y. 324.) IV. Any alleged mistakes in the Trial Judge’s charge constituted only harmless error. V. The proof of guilt was overwhelming.
   Chief Judge Desmond.

The judgment is affirmed under section 542 of the Code of Criminal Procedure which directs us to give judgment without regard to technical errors which do not affect the defendant’s substantial rights. The proof of guilt here was overwhelming. At one point in his lengthy charge to the jury the Judge gave an explanation of section 1120 of the Penal Law which used the words and/or ” instead of or ” but this was not detrimental to defendant, especially since the New York law as to the defense of insanity was accurately stated in other parts of the charge.

At another place in the instructions to the jury the court used language which could be interpreted to mean that to destroy the effect of a confession the jury had to be convinced beyond a reasonable doubt that the confession was involuntary. The burden of proof was, of course, on the People not on defendant but in view of the immediately preceding instructions on this same subject we do not believe that the statement made by the court was prejudicial to defendant’s position. As to the confession itself, there was at most a question of fact as to whether it was obtained by force or other wrong. On this record the jury could reasonably find that defendant confessed voluntarily and in response to the advice of his wife and his attorney.

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

Judgment of conviction affirmed, pursuant to section 542 of the Code of Criminal Procedure.  