Opinion
March 21, 1977
Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered August 17, 1973, convicting him of attempted robbery in the second degree and assault in the first degree, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. The District Attorney consents to the reversal and direction for a new trial. At the trial, appellant testified in his own defense and denied having made any statements following his arrest to a Patrolman Belle. As part of the People's rebuttal case, Patrolman Belle testified that appellant had in fact made an admission to him. This testimony was not received as part of the People's main case because of the officer's failure to give the requisite warnings; it was offered solely for the purpose of impeaching appellant's credibility (see Harris v New York, 401 U.S. 222). The trial court, however, failed to give any instructions as to the limited nature of the rebuttal testimony when it was offered and, during the charge, the jury was not clearly instructed that the admission could not be considered as evidence of guilt. Accordingly, a new trial is necessary. (See People v Patterson, 48 A.D.2d 933, where a codefendant was granted a new trial.) Martuscello, Acting P.J., Cohalan, Rabin and Mollen, JJ., concur.