People v. Ortiz

277 A.D.2d 873, 716 N.Y.S.2d 489, 2000 N.Y. App. Div. LEXIS 11498

Opinions

—Judgment reversed on the law and new trial granted. Memorandum: Defendant appeals from a judgment convicting him following a jury trial of manslaughter in the second degree (Penal Law § 125.15 [1]). County Court erred in refusing to admit in evidence defendant’s entire statement to the police made while defendant was in custody. Because the prosecution utilized the suppressed statement on cross-examination of defendant to attack defendant’s testimony as a recent fabrication and read substantial portions of the statement into evidence for that purpose, the court should have admitted the remaining portions of the statement (see, People v Gallo, 12 NY2d 12, 15-16; cf., People v McDaniel, 81 NY2d 10, 18). We cannot say that proof of guilt was overwhelming and thus, we conclude that the error was not harmless.

All concur except Wisner and Scudder, JJ., who dissent and vote to affirm in the following Memorandum.