This is one of the cases in which we are under compulsion to work — without benefit of controlling decision, statute or rule — an appropriate procedure for providing the separate hearing mandated by Jackson v. Denno (378 U. S. 368 [1964]) as to voluntariness of a confession received in evidence against a defendant at his trial. For the present and tentatively we set out some of the rules to be applied in these matters, pending further development by the courts or by the Legislature, or both. [*75]

In 1960 appellant Huntley was, after trial in the former Court of General Sessions, convicted of robbery, first degree, and given a prison sentence which he is now serving. At the trial there had been put before the jury a complete confession by defendant, the voluntary character of which was explored at a voir dire examination and submitted to the jury as a question of fact. Huntley's appeal to the Appellate Division, First Department, resulted in an affirmance (15 A D 2d 735 [Feb., 1962]). Defendant then made, to an Associate Judge of this court, a timely application (Code Crim. Pro., § 520) for leave to appeal to us. The application was denied on April 18, 1962. After the Supreme Court's Jackson v. Denno decision (supra) came down in June, 1964, defendant's application for reconsideration of his section 520 application was granted by our Associate Judge who, on October 2, 1964, signed a certificate allowing defendant to appeal to this court. A notice of appeal was filed and served a few days later.

We must first decide whether the section 520 Code of Criminal Procedure certificate thus granted to defendant after previous denial and reconsideration thereof is effective to bring the Jackson v. Denno (supra) question to us. Despite People v. Muller (11 N Y 2d 154, cert. den. 371 U. S. 850); we hold that it is. Muller, too, had been denied leave to appeal to this court and that denial had, several years later, been set aside by an Associate Judge of this court and an appeal allowed, so as to test the question of whether the Supreme Court's 1961 holding in Mapp v. Ohio (367 U. S. 643) could thus be taken advantage of, long after the usual time for appeal to us had expired. We held in Muller's case that the appeal, allowed by a Judge after an earlier denial, was out of "the normal appellate process" and so could not get the benefit of the Mapp rule. However, our determination in Muller does not fit the present situation. The Supreme Court's ruling in Jackson v. Denno necessarily meant or assumed that its new requirement of a separate hearing as to voluntariness of confessions applied as well to criminal judgments which were no longer in the "normal appellate process". The relief granted by the Supreme Court to Jackson was in a Federal habeas corpus proceeding, brought long after State appellate procedures had been used and exhausted. It follows that (overruling so much of People v. Hovnanian, 22 A D 2d 686 [Oct., [*76] 1964], as holds otherwise) we must take this appeal, order a confession- voluntariness hearing before the trial court and meanwhile hold the appeal here undecided while we await the results of that hearing (see People v. Coffey, 11 N Y 2d 142).

The briefs of both appellant and respondent ask for a remission to the trial court but defendant alternatively requests that this appeal be dismissed with leave to defendant to file a coram nobis type motion in the trial court (now Supreme Court, New York County). The People, while not making any proposal other than remission-for-hearing, suggest that "There may be a remedy by state habeas corpus, if that writ is deemed to have been substantially expanded by its re-enactment in the CPLR". Let us examine those two possibilities.

The function of "state habeas corpus" was in the past limited under section 1231 of the Civil Practice Act, as it was at common law, to testing the jurisdiction of the court over the person and the crime (People ex rel. Carr v. Martin, 286 N. Y. 27; Matter of Morhous v. Supreme Ct., 293 N. Y. 131). Old section 1231 of the Civil Practice Act said that a person may not have habeas corpus relief "Where he has been committed or is detained by virtue of the final judgment or decree of a competent tribunal of ... criminal jurisdiction". But the new CPLR has substituted language quite different. CPLR 7002 (a) authorizes a habeas corpus petition by "A person illegally imprisoned or otherwise restrained within the state". Nothing in the revisers' reports or other legislative materials gives any explanation for the change and we are left without any indication of its purpose. However, since, as we shall show, habeas corpus seems for other reasons to be unfitted as a means for obtaining the relief required by Jackson v. Denno (supra), we need not at this time attempt definitively to construe the above-quoted new language in CPLR 7002. Difficulty with the use of habeas corpus comes from the requirement (continued from Civ. Prac. Act, § 1239, subd. 3, into CPLR 7004, subd. [c]) that the writ must in most instances be returnable in the county in which the relator is detained. This means that, except where the trial was held in the county where relator is detained, the habeas corpus writ must be returnable in a county other than the county of trial. The habeas corpus Judge, himself unfamiliar with the case and its former proceedings, would have to hold the [*77] Jackson v. Denno hearing at a place not only inconvenient but having no reasonable connection with the criminal trial. We conclude that, unless the habeas corpus sections (art. 70) of CPLR are changed in several respects, the writ is not usable as a process for Jackson v. Denno relief.

Defendant's alternative proposal is that, if we dismiss this appeal, he be permitted to make a coram nobis type motion to the trial court. Since we are entertaining and not dismissing this appeal, such an alternative course is unnecessary in the present case. However, for the future we deem it preferable and hereby direct that in all cases heretofore tried and concluded and in which confessions were introduced and their voluntariness contested, and the normal appellate processes have been exhausted or are no longer available, defendants seek Jackson-Denno relief by coram nobis motion. While this is a departure from the traditional role played by coram nobis, we deem its use in these cases appropriate since its employment will avoid burdening this court and the Appellate Division, as well as other appellate courts, with rearguments which do no more than withhold determination of such appeals pending remission to the trial court for the required hearing on the issue of voluntariness.

Some but not all of the other questions which have been or will be raised because of Jackson v. Denno (supra) are answered by us as follows:

(1) As to trials already concluded:

(a) No Jackson-Denno hearing will be necessary in cases where a confession was admitted without any objection by the defendant or any assertion by him or his witnesses as to voluntariness. Even in these cases, however, if the trial court has charged the jury on voluntariness the issue was in the case and a new hearing is indicated.

(b) As to the type of hearing to be had, there is no constitutional impediment to using the prior record provided that the defendant and the People are permitted to put in additional proof if either side so desires. Where possible, the new hearing will be held before the Judge who previously presided at the voir dire, if any, or the trial proper. The defendant should be provided counsel if he so desires. The court, after holding the Jackson-Denno hearing, shall put into the record a decision containing specific findings of fact and conclusions of law. In [*78] these cases already concluded there is no need, since the jury has already passed on the matter, again to submit to the jury the question of voluntariness.

(2) As to criminal trials to be held in the future:

(a) We adopt for New York State the so-called Massachusetts procedure described in the Jackson v. Denno opinion at pages 378-379 of 378 United States Reports "under which the jury passes on voluntariness only after the judge has fully and independently resolved the issue against the accused" and has made express findings upon the disputed fact question of voluntariness. We favor the Massachusetts rule for several reasons, the first being that our State Constitution (art. I, § 2) mandates a jury trial of the issue of voluntariness. Another consideration supporting this choice is that the Massachusetts rule not only meets the demand of Jackson-Denno that "a proper determination of voluntariness be made prior to the admission of the confession to the jury which is adjudicating guilt or innocence" (378 U. S., p. 395) but also provides a defendant with an opportunity before the jury itself to challenge the confession.

(b) The Judge must find voluntariness beyond a reasonable doubt before the confession can be submitted to the trial jury. The burden of proof as to voluntariness is on the People. The prosecutor must, within a reasonable time before trial, notify the defense as to whether any alleged confession or admission will be offered in evidence at the trial. If such notice be given by the People the defense, if it intends to attack the confession or admission as involuntary, must, in turn, notify the prosecutor of a desire by the defense of a preliminary hearing on such issue (cf. Code Crim. Pro., § 813-c).

Undoubtedly other questions will come to us as a result of the Jackson-Denno holdings but we think it wiser to leave those others for future determination.

The determination of this appeal should be withheld and the case remitted to the Supreme Court, New York County, for further proceedings not inconsistent with this opinion.

The change in procedure in the trial of criminal actions in New York State which is necessary in order to conform to the ruling of the United States [*79] Supreme Court in Jackson v. Denno (378 U. S. 368) is relatively minor, insofar as it applies to subsequent trials. Its profoundly disruptive effect arises from its application to criminal actions, like the present, which have terminated and in which the appellate process has been exhausted. Daniel Webster said that the past, at least, is secure. That statement would not have been uttered if he had known of Jackson v. Denno, since it renders uncertain and insecure the confinement of every living convict wherever, in the changing winds of current opinion, his constitutional rights have been violated at the time of his trial. The concept of due process of law in criminal matters is constantly expanding, with the consequence that there are few points of criminal procedure, or, for that matter, of substantive law, which are not deemed to partake of it. This means that, as a result of the expansion of the Federal writ of habeas corpus in 1953 by the decision in Brown v. Allen (344 U. S. 443), few prisoners are in confinement whose convictions may not be drawn in question in the Federal courts on account of some alleged infringement of due process or other constitutional protection — not merely the particular kind of lack of due process held to have existed in Jackson v. Denno — regardless of whether the point was raised in the trial court and without regard to the lapse of time since the conviction. One might consider that this denied the equal protection of the laws to those who have already been executed for capital offenses, especially while the law as then announced by the United States Supreme Court was opposite to what it is now. The past, as it seems to me, cannot effectually be remolded according to present standards contrary to those established by authoritative decisions in effect at the time. The substantial question before us on this appeal is whether to expand the New York postconviction remedies of habeas corpus or coram nobis to match the recently broadened scope of Federal habeas corpus as exemplified by Brown v. Allen and Jackson v. Denno. For more than 10 years after Brown v. Allen we adhered to the established New York State common law and statutory rules restricting habeas corpus to testing the jurisdiction of the court over the person of the defendant and the crime charged (People v. Schwartz, 12 N Y 2d 753; Matter of Morhous v. Supreme Ct., 293 N. Y. 131; People ex rel. Carr v. Martin, 286 N. Y. 27) and limiting coram nobis, with a few exceptions not [*80] relevant here, to matters which could not be raised on appeal (People v. Brown, 13 N Y 2d 201; People v. Howard, 12 N Y 2d 65). We are laid under no more obligation by Jackson v. Denno to expand our traditional postconviction remedies of habeas corpus or coram nobis — which are broad enough as they are — than we were 10 years earlier by Brown v. Allen. As the cases which I have cited demonstrate, we have repeatedly declined to do this since Brown v. Allen was decided. There is no more reason on account of which we should do so, in my judgment, because of Jackson v. Denno. As the Supreme Court said in Missouri v. Lewis (101 U. S. 22, 31): "We might go still further, and say, with undoubted truth, that there is nothing in the Constitution to prevent any State from adopting any system of laws or judicature it sees fit for all or any part of its territory. ... The Fourteenth Amendment does not profess to secure to all persons in the United States the benefit of the same laws and the same remedies." (John v. Paullin, 231 U. S. 583, 585; 14 Am. Jur., Courts, p. 253.)

The existing New York procedure has provided opportunity all along to defendants in criminal cases represented, as appellant Huntley was, by counsel, to object at their trials to the consideration by juries of the voluntariness of their confessions until after that issue had been ruled upon preliminarily by the Trial Judge as a question of fact, and, if overruled, to review the point upon appeal. Defendants in Huntley's situation have, therefore, not been foreclosed of opportunity to litigate the point decided in Jackson v. Denno and, if they have declined to do so or have done so unsuccessfully, the State of New York is under no obligation placed upon it by the United States Constitution to provide postconviction remedies, even where due process is involved, to review questions that could have been raised by appeal: not, that is, unless adversary methods are to be abandoned in criminal trials and paternalistic supervision by courts substituted therefor.

It is true that technically this case comes before us on appeal from a judgment of conviction, but not until after leave to appeal had been denied under section 520 of our Code of Criminal Procedure. After the decision by the Supreme Court in Jackson v. Denno, denial of leave was revoked and permission to appeal [*81] was granted, as it was in People v. Muller (11 N Y 2d 154, cert. den. 371 U. S. 850), solely to enable us to determine whether the Jackson v. Denno ruling should be applied to criminal actions where the normal appellate process had been exhausted. People v. Muller held that Mapp v. Ohio (367 U. S. 643) would not be applied so as to reopen a conviction where the normal appellate process had been exhausted. The only reason on account of which the court majority is applying Jackson v. Denno here, contrary to what was done with Mapp v. Ohio in the Muller case, is, as it seems to me, that Mapp v. Ohio went up on appeal from the judgment of conviction, whereas Jackson v. Denno was decided on the Federal postconviction remedy of habeas corpus. It is for that reason only, as I read the majority opinion, that People v. Muller is being overruled in this instance and the court is proceeding to the merits of the appeal after the normal appellate process has been exhausted. On that reasoning, I suppose that People v. Muller would be overruled on its own facts if Federal habeas corpus were held, as it may be, by the Supreme Court to extend to the situation presented in Mapp v. Ohio, as well as the one in Jackson v. Denno. It is clear from the majority opinion, as it seems to me, that People v. Muller would have been followed and not overruled on this appeal if the court had not decided as a matter of policy to broaden our State remedy of coram nobis to correspond to the scope of Federal habeas corpus as enlarged by Brown v. Allen and Jackson v. Denno. Therefore I have addressed myself in this dissenting opinion to whether our State postconviction remedies should be expanded in that manner since, although coram nobis and habeas corpus are not here directly involved, the enlargement of coram nobis is being regarded as the actuating principle of the decision.

In general, with exceptions based on special circumstances, we have endeavored to follow Federal precedent in questions of practice and procedure although not compelled by the Constitution to do so. Whether we broaden coram nobis to correspond to the jurisdiction exercised under the Federal writ of habeas corpus is a question of State policy not of constitutional mandate. If we do not do so, the Federal courts may issue their process as they have in the past where they hold that State remedies to redress a Federal right have been exhausted at the [*82] time when application for Federal habeas corpus is made (e.g., Young v. Ragen, 337 U. S. 235; Fay v. Noia, 372 U. S. 391 passim, especially pp. 424-425). If we decline to alter our State postconviction remedies in manner capable of resulting in the discharge from prison of any living criminal who has been legally convicted, no matter how long ago, because the Supreme Court has held its earlier decisions to be erroneous (cf. Jackson v. Denno, supra; Fay v. Noia, 372 U. S. 391; Townsend v. Sain, 372 U. S. 293; Sanders v. United States, 373 U. S. 1; Brown v. Allen, 344 U. S. 443), we would simply be allowing, as we have before, postconviction matters in excess of our postconviction jurisdiction to pass into the Federal courts. States have undoubted power to limit their own jurisdictions, without constraint from the Federal courts. That is an inherent part of our Federal system. It goes without saying that the State courts will follow Jackson v. Denno and the other Supreme Court decisions in all subsequent litigation, and in litigation which is still pending where the point is raised and the appellate process has not been exhausted. We are likewise obligated, of course, to follow the mandates of the Federal courts in cases where Federal writs of habeas corpus have issued and been sustained. But to attempt to apply these changing principles to all of the water that has gone over the dam, to reconstruct of our own accord all past and closed criminal trials to fit the pattern of what is constitutional law now but was not when they were conducted and decided, is too much to expect of any State court. To say that the whole criminal law of procedure is in a state of flux is an understatement. There are certain to be further changes in Federal decisions, and for us to attempt to copy them now where we are not obliged to do so by the Constitution or the Supreme Court is to invite even greater confusion. We are not legally or morally obligated to assume this responsibility for jail deliveries, nor will doing so, in my opinion, accomplish either law or justice. If the Federal courts are required to deal with these serious problems which they have created, instead of creating them and transferring responsibility for their solution to the States, it is probable that workable solutions will be reached sooner than under conditions of divided responsibility between Federal and State tribunals. That would [*83] at least keep the lines of responsibility distinct, and help to prevent the State courts from becoming mere subordinate instrumentalities of the Federal judicial establishment.

Jackson v. Denno, like Mapp v. Ohio, is undoubtedly retroactive in the sense that it applies to transactions that occurred before it was decided, and while an opposite rule was the law of the land (People v. Loria, 10 N Y 2d 368); but the legal fiction, contrary to fact, that the law always was what it is now does not ordinarily apply to civil or criminal actions which have been finished, and in which the appellate process has been exhausted, at the time of the new decision altering the former rule. Although objection was made on the trial of Jackson v. Denno to the admission in evidence of the confession of the accused, on the ground that it was involuntary, no objection was raised to the submission of the question of voluntariness to the jury instead of calling upon the Trial Judge to decide it preliminarily as a question of fact. The same situation exists in the present record. The impact of Jackson v. Denno is, therefore, to allow review by Federal habeas corpus even where the attention of the Trial Judge was not called to the contention that the time-honored New York practice was erroneous. This presents the danger that every judgment of conviction after trial, whenever entered, is subject to being vacated if a confession or admission against interest was introduced in evidence, although counsel for the accused has not raised the point that its voluntariness should first be adjudged by the Trial Judge as a question of fact. To be sure, there would be little reason for a defendant's lawyer to anticipate that such a demand would be successful inasmuch as the law of the State had been otherwise for a hundred years, and was sanctioned by the Supreme Court of the United States in Stein v. New York (346 U. S. 156). We held in People v. Friola (11 N Y 2d 157) that an objection had to be taken at the trial on constitutional grounds to the introduction of allegedly illegally obtained evidence, but Chief Judge Desmond dissented in an opinion concurred in by Judge Fuld in which it was objected (p. 161): "We are now saying that we will not apply the new law in a pre-Mapp case unless on the trial the defendant's counsel did what was then futile, unreasonable [*84] and contrary to the then law, that is, object to the admission of testimony which under the unquestioned New York law and Federal law (People v. Defore, 242 N. Y. 13, cert. den. 270 U. S. 657; Wolf v. Colorado, 338 U. S. 25) was clearly admissible. So the client whose counsel took a groundless objection gets the benefit of the latter (Mapp) change in law while the client whose lawyer refrained from mouthing a meaningless objection is prejudiced because his lawyer took the correct position."

The fear is not groundless that this reasoning was acted upon in Jackson v. Denno, where the point on which the case was decided was not raised at the trial, and in Townsend v. Sain (372 U. S. 293, 322) referring to Fay v. Noia, in the same volume at page 438. If so, our court is now extending our postconviction remedy of coram nobis to become coextensive with a Federal writ under which criminal convictions can be vacated whenever they occurred, if any kind of a constitutional right as now defined has been infringed, even though the point was not raised and the time to appeal has expired. This could put at hazard many prior convictions. The disagreement in our court is not over that, but concerns whether as a matter of comity or State policy we should change our postconviction remedies or leave redress in such instances to the Federal courts. In my judgment we should do the latter.

I would say a word in conclusion about the scope of this problem. If Jackson v. Denno situations were all that we are confronted with, the problem would be of lesser dimensions. Actually Jackson v. Denno involves little practical change in criminal trials in New York State. In most instances the decision of preliminary questions of fact conditioning the admissibility of evidence has been for the Trial Judge (People v. Marks, 6 N Y 2d 67, 74-76). The practice for testing the voluntariness of confessions or admissions against interest of accused persons, although ingrained in the legal history of the State, was treated as an exception to the general rule (People v. Marks, supra, pp. 75-76). Even there the practice has been for the Trial Judge to take testimony on the voir dire, including that of the defendant if he wishes, to enable the trial court to determine out of the presence of the jury whether the confession or admission was coerced or involuntary as matter of law, and, indeed, [*85] whether a determination that it was voluntary would be against the weight of evidence (People v. Doran, 246 N. Y. 409, 416-418, 428, and cases cited). If we were to adopt the orthodox rule whereby the voluntariness of the confession is adjudicated by the Trial Judge only, and not submitted to the jury, a greater difference might ensue, but under the Massachusetts rule, proposed to be adopted by our court majority, if the Trial Judge rules that the confession or admission is voluntary as a question of fact, his finding is not final but the same issue is again submitted to the jury. This involves all the refinements of having the jury distinguish between the voluntariness and the truth of confessions or admissions and the injustice of forcing a defendant to testify who has a criminal record, sought to be obviated or minimized by Jackson v. Denno, and, moreover, the average Trial Judge, if he knows that the matter will be decided finally by the jury anyhow, is likely to find that it was voluntary as a fact by applying similar standards of judgment to those which he would have used under the old law in determining whether or not it would be against the weight of the evidence to decide that it was voluntary. The difference, in common practice, is likely to be more verbal than real. The significance of this is that, if any past conviction may be vacated on this slender ground, the same will be true of many other and perhaps more serious past infractions of what are regarded as constitutional rights under the wisdom of today.

The past cannot be reformed in the image of the present. Through lapse of time witnesses have died or disappeared, prosecuting officers and Judges who knew the circumstances have left the scene, exhibits and other records have been destroyed or disappeared. Finality must enter somewhere, for similar reasons to those given by Mr. Justice Story in Bell v. Morrison (1 Pet. [26 U. S.] 351, 360) regarding the Statute of Limitations which he and his court characterized as "a wise and beneficial law ... to afford security against stale demands, after the true state of the transactions may have been forgotten, or be incapable of explanation".

In my view the judgment of conviction should be affirmed for the reason that the appellate process has been exhausted at the time of the decision in Jackson v. Denno (People v. Muller, 11 N Y 2d 154, cert. den. 371 U.S. 850, supra). [*86]

Judges Dye, Fuld, Burke and Bergan concur with Chief Judge Desmond; Judge Van Voorhis dissents in an opinion in which Judge Scileppi concurs.

Determination of appeal withheld and case remitted to the Supreme Court, New York County, for further proceedings not inconsistent with the opinion herein.