People v. Jackson

90 A.D.2d 836

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County (Kay, J.), rendered November 10, 1981, convicting him of criminal possession of a controlled substance in the third and fourth degrees, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and case remitted to Criminal Term for further proceedings in accordance herewith. On the facts of this case, the trial court’s failure to instruct the jury on the proper use of appellant’s suppressed statement requires a reversal. The trial court was required to charge the jury that appellant’s statement was admitted only for the purpose of impeaching his credibility and not for the truth of its contents (see People v Ricco, 56 NY2d 320). While this error was not preserved for appellate review as a matter of law, under the circumstances, we find that the failure to properly instruct the jury requires a reversal as a matter of discretion in the interest of justice. Given the extent of appellant’s complaint about his former attorney he should, prior to the new trial, if he be so advised, be permitted to make a motion to suppress the drugs. Damiani, J. P., Gulotta, O’Connor and Brown, JJ., concur.