PEOPLE v. ORTIZ (2000)

 Defendant appeals from a judgment convicting him following a jury trial of manslaughter in the second degree (Penal Law § 125.15[1] ).   County Court erred in refusing to admit in evidence defendant's entire statement to the police made while defendant was in custody.   Because the prosecution utilized the suppressed statement on cross-examination of defendant to attack defendant's testimony as a recent fabrication and read substantial portions of the statement into evidence for that purpose, the court should have admitted the remaining portions of the statement (see, People v. Gallo, 12 N.Y.2d 12, 15-16, 234 N.Y.S.2d 193, 186 N.E.2d 399;  cf., People v. McDaniel, 81 N.Y.2d 10, 18, 595 N.Y.S.2d 364, 611 N.E.2d 265).   We cannot say that proof of guilt was overwhelming and thus, we conclude that the error was not harmless.

Judgment reversed on the law and new trial granted.

We respectfully dissent and would affirm.   County Court properly refused to admit in evidence the entire statement defendant made to the police while in custody.   Defendant contends that it was admissible to disprove the inference that his testimony at trial was a recent fabrication.   We disagree.  “[T]he statement was made after defendant was under arrest, and thus after he had a motive to falsify” (People v. Sease-Bey, 111 A.D.2d 195, 196, 488 N.Y.S.2d 822, lv. denied 66 N.Y.2d 618, 494 N.Y.S.2d 1041, 485 N.E.2d 245;  see, People v. Benton, 158 A.D.2d 987, 551 N.Y.S.2d 139, lv. denied 75 N.Y.2d 963, 556 N.Y.S.2d 248, 555 N.E.2d 620).   A prior consistent statement is not admissible to disprove the inference of recent fabrication where, as here, “the same motive to falsify which exists at the time of the testimony existed at the time the prior consistent statement was made” (People v. McClean, 69 N.Y.2d 426, 428, 515 N.Y.S.2d 428, 508 N.E.2d 140;  see also, People v. McDaniel, 81 N.Y.2d 10, 19, 595 N.Y.S.2d 364, 611 N.E.2d 265).   Further, defendant did not limit his offer of proof to the relevant portions of the statement (cf., People v. Gallo, 12 N.Y.2d 12, 15-16, 234 N.Y.S.2d 193, 186 N.E.2d 399).

MEMORANDUM:

All concur except WISNER and SCUDDER, JJ., who dissent and vote to affirm in the following Memorandum: