Opinion
July 12, 1985
Appeal from the Erie County Court, Forma, J.
Present — Dillon, P.J., Hancock, Jr., Doerr, Denman and O'Donnell, JJ.
Judgment unanimously reversed, on the law, and new trial granted. Memorandum: Defendant was deprived of his right to testify because of the court's erroneous ruling that statements made by the defendant as a basis for a plea of guilty which was later withdrawn could be used for purposes of impeachment at trial. Once a guilty plea has been withdrawn, it ceases to be evidence and "is out of the case forever and for all purposes" ( People v. Spitaleri, 9 N.Y.2d 168, 173; see also, People v Droz, 39 N.Y.2d 457; People v. Papo, 80 A.D.2d 623). People v Evans ( 58 N.Y.2d 14) is not to the contrary. The statement in Evans was not a part of the actual plea colloquy as are the statements which the People sought to use here. To permit the substance of the plea colloquy to be used at a subsequent trial would render the withdrawal of the plea a mockery.