59 A.D.2d 912
N.Y. App. Div.
1977

Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered June 24, 1976, convicting him of assault in the first degree and criminal possession of a weapon in the second degree, upon a jury verdict, and imposing sentence. Judgment reversed, as a matter of discretion in the interest of justice, and new trial ordered. At the trial, defendant testified in his own defense and denied having made any statements to Detective Finder to the effect that he had intentionally shot his girlfriend because he saw her sitting on another man’s lap. This latter evidence, although previously suppressed for failure to have given defendant the requisite Miranda warnings, had been properly introduced on the People’s rebuttal for the sole purpose of impeaching the defendant’s credibility (see Oregon v Hass, 420 US 714, 722; Harris v New York, 401 US 222, 225). The trial court, however, failed to properly instruct the jury, in its charge, that this rebuttal evidence had been received solely for impeachment purposes and not as evidence in chief. Accordingly, a new trial is necessary (see People v Boone, 56 AD2d 892; People v Patterson, 48 AD2d 933; People v Almestica, 42 NY2d 222). In view of the degree of prejudice attendant upon this constitutional error a new trial is warranted in the interest of justice notwithstanding defense counsel’s failure to take timely objection to the charge’s omission (see CPL 470.15, subd 6, par [a]; People v Kelly, 12 NY2d 248; People v Joyner, 54 AD2d 966). Margett, J. P., Rabin, Titone and Mollen, JJ., concur.