Opinion
April 11, 1977
Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered February 6, 1976, convicting him of burglary in the second degree, grand larceny in the second degree and possession of burglar's tools, upon a jury verdict, and imposing sentence. Judgment reversed, on the law, and new trial ordered. At the time of his arrest defendant was taken to the police station house for booking. Prior to being given his Miranda warnings, defendant was told that he was being booked for criminal possession of six stolen boxes of men's slacks. Defendant replied: "How can you charge me with the six boxes, I only had two?" That statement was properly suppressed prior to the trial. At the trial, although the defendant testified, the prosecutor failed to inquire of him whether he had made such a statement. The use of the statement, at that time, would have been proper to attack the credibility of the witness, even though the statement itself could not be received as an admission of the crime (see People v Johnson, 27 N.Y.2d 119). Having failed to so question the defendant, the prosecutor then recalled the police officer and elicited the statement on rebuttal. This was error. By using the police officer to affirmatively testify that the defendant did make the statement, the statement was offered as an admission. The statement, made after his arrest but prior to being read his Miranda warnings, could not be used in this manner. Rabin, Acting P.J., Shapiro, Titone and O'Connor, JJ., concur.