The opinion
Nunez, J.
(dissenting). In my view the trial court committed reversible error in permitting the prosecutor to question Edward Hanley, a witness called by the People, concerning his prior testimony before the Grand Jury.
Defendant, an official of the steamfitters union, under a grant of immunity, had testified before a Grand Jury investigating bribery of labor officials. As part of its investigation, the Grand Jury sought to determine whether officials of the steamfitters union had received payments from one Hugh Mulligan so as to enable the latter to exert unlawful influence on the affairs of the union. The indictment charged that the defendant had falsely denied that on February 7, 1969, at Costello’s Bar in New York City he had cashed a check from Afgo Engineering Corp., payable to H. Mulligan in the amount of $199.35. Hanley testified before the Grand Jury that he had cashed the check for the defendant on February 7, 1969 at Costello’s Bar where he was a bartender. At trial, Hanley testified that he had no present recollection of the events of February 7, 1969 when the check in question was cashed. Had Hanley testified at trial as he did before the Grand Jury, he would have provided the requisite corroboration to establish that the defendant did cash the check as alleged in the indictment. Hanley was unable to either corroborate or to refute the testimony of Lieutenant Edward J. Killeen that the defendant had cashed the check. His testimony was completely neutral — he did not support the People’s version of what had happened at Costello’s Bar but, on the other hand, it did not “ tend to disprove ” it.
*76 CPL 60.35 in its pertinent part provides: “1. When, upon examination by the party who called him, a witness in a criminal proceeding gives testimony * * * which tends to disprove the position of such party, snch party may introduce evidence that such witness has previously made * * * an oral statement under oath contradictory to such testimony. * * *
‘ ‘ 3. When a witness has made a prior signed or sworn statement contradictory to his testimony in a criminal proceeding upon a material issue of the case, but his testimony does not tend to disprove the position of the party who called him and elicited such testimony, evidence that the witness made such prior statement is not admissible, and such party may not use such prior statement for the purpose of refreshing the recollection of the witness in a manner that discloses its contents to the trier of the facts.” Defendant’s specific objections to the reading of Hanley’s testimony before the Grand Jury should have been sustained. The prosecutor was wrongfully allowed to confront Hanley with his prior testimony. This was in clear defiance of the legislative mandate quoted above. Hanley’s testimony did not ‘1 tend to disprove ’ ’ the prosecution’s position. That this unlawful use of Hanley’s Grand Jury testimony had a prejudicial impact on the trial jury is clearly established by the fact that the jury’s notes and questions related to Hanley’s Grand Jury testimony. Thus, we have not only a clear violation of CPL 60.35, but also clear evidence of its decisive impact on the jury’s guilty verdict.
The two California cases cited by the majority are of no help to the People. Concededly, People v. Sam ( 71 Cal. 2d 194 ) supports our view. And the other cited case, People v. Green ( 3 Cal. 3d 981 ) is likewise supportive of our position. In the latter case the witness did not say that he did not remember the events leading up to and following the crucial moment when the marijuana came into his possession. He gave equivocal and inconsistent testimony. The California Supreme Court observed: ‘ ‘ For the reasons stated above, we conclude that Porter’s deliberate evasion of the latter point [when the marijuana came into his possession] in his trial testimony must be deemed to constitute an implied denial that defendant did in fact furnish him with the marijuana as charged. His testimony was thus materially inconsistent with his preliminary hearing testimony and his extra-judicial declaration to Officer Wade, in both of which he specifically named defendant as his supplier. Accordingly, the two prior statements of this witness were *77 properly admitted pursuant to Evidence Code section 1235.” (People v. Green, supra, pp. 988-989 .) ",
Furthermore, the California statute, far from being similar., to the New York statute, is completely dissimilar.. The California Evidence Code (§ 1235) provides that a prior inconsistent statement is admissible not only to impeach a witness’ credibility but also to" prove the truth of the matters asserted therein. In contrast, the New. York statute providés that such prior inconsistent testimony is not admissible unless his testimony at trial tends .to disprove the position of the party-who called him. Perhaps Hanley lied when he testified he did not recall the crucial events at Costello’s Bar. But whether he lied or told the truth, his testimony in no way tended to disprove the People’s case, the prerequisite to admission of his grand jury testimony..
For the foregoing reasons I would reverse and order a new trial.
Markbwioh and Timer, JJ., concur with Stevens, J. P.; Capozzoli and Nunez, JJ., dissent in. an opinion by Nunez, J.
Judgment, Supreme Court, New York County, rendered on February 6, 1973, affirmed.