Opinion
October 26, 1984
Appeal from the Supreme Court, Queens County (Lakritz, J.).
Judgment reversed, on the law, and new trial ordered. No questions of fact have been raised or considered.
At defendant's trial for burglary in the second degree, the prosecutor, in his opening statement, referred to an admission made by defendant upon his arrest. The statement, taken while defendant was in custody and without the benefit of Miranda warnings, had been suppressed after a Huntley hearing.
Defendant's motion for a mistrial should have been granted. Reference to the suppressed statement cannot be considered harmless error. The test for harmless constitutional error is that there is "no reasonable possibility that the error might have contributed to defendant's conviction" ( People v Crimmins, 36 N.Y.2d 230, 237). It cannot be said on the record before us that the reference to the statement, which, at trial, defendant denied making, did not contribute to his conviction. Accordingly, a new trial is mandated (cf. People v Bradshaw, 56 A.D.2d 657). Titone, J.P., Lazer, Bracken and Boyers, JJ., concur.