Opinion
March 28, 1988
Appeal from the Supreme Court, Westchester County (Stolarik, J.).
Ordered that the judgment is reversed, on the law, and a new trial is ordered; the findings of fact have been considered and are determined to have been established.
Initially, we reject the defendant's argument that that branch of his omnibus motion which was to suppress the statements he made to the police following his arrest was improperly denied. There is no basis for disturbing the hearing court's finding that the defendant's statements made to the police at the time of his arrest were spontaneous and unsolicited (see, People v. Lynes, 49 N.Y.2d 286, 294-295; People v. Bryant, 87 A.D.2d 873, 874, affd 59 N.Y.2d 786, rearg dismissed 65 N.Y.2d 638).
Contrary to the defendant's further contentions, the evidence was legally sufficient to support his conviction for robbery in the first degree (see, Penal Law § 160.15; People v Baskerville, 60 N.Y.2d 374; People v. Brown, 108 A.D.2d 922, 923) and assault in the second degree (see, Penal Law § 120.05; People v. Bogan, 70 N.Y.2d 860, rearg denied 70 N.Y.2d 951).
However, reversal of the judgment and a new trial is warranted on the ground that the trial court improperly denied the defendant's motion to strike the testimony of Tony Canada. The People called Canada as a rebuttal witness to establish that he had been asked by the defendant to speak to the complainant about dropping the charges against the defendant. However, when Canada denied that the defendant had approached him with that request, upon the prosecutor's motion, the witness was declared "hostile". Canada was then asked the following questions by the prosecutor and the court:
"Q. Tony, do you remember speaking with me down in my office about a half hour ago?
"A. Yes * * *
"Q. Okay. Do you remember telling me when I asked you what exactly Keith Upshaw said to you, that you told me he said can you talk to your man?
"A. But I had —
"Q. Did he say that, that is all I'm asking, did he say can you talk to your man?
"A. No.
"THE COURT: Mr. Canada. All he's asking you, did you say —
"A. No * * *
"Q. One more time. Did Keith ever say, did you ever tell me in my office that Keith said to you why don't you talk to your man.
"[DEFENDANT'S COUNSEL]: Objection, asked and answered.
"THE COURT: I — * * *
"THE COURT: Yes or no, did you say that to [the prosecutor]?
"THE WITNESS: I didn't say that in that type of statement.
"THE COURT: Did you say that statement? That is all he's asking you. You heard the statement that he just made?
"THE WITNESS: No" (emphasis supplied).
Since Canada's testimony did not connect the defendant to any attempt to influence the complainant, it should have been stricken upon the defense counsel's request (see, People v Buzzi, 238 N.Y. 390, 397-398). Further, the prosecutor was allowed to become, in effect, an unsworn witness against the defendant. Under the circumstances, it cannot be said that the refusal to strike this rebuttal testimony was harmless error (see, People v Johnson, 57 N.Y.2d 969, 970; People v. Crimmins, 36 N.Y.2d 230, 241).
The other issues raised by the defendant need not be addressed. Thompson, J.P., Lawrence, Rubin and Spatt, JJ., concur.