
    The People of the State of New York, Respondent, v. Thomas Gallo, Appellant.
    Argued October 1, 1962;
    decided October 25, 1962.
    
      Richard S. Weisbroat and Anthony F. Marra for appellant.
    I. Admissions made by defendant, in absence of counsel, to a detective who visited and interrogated him at the House of Detention subsequent to arraignment, were erroneously received in evidence. (People v. Meyer, 11 N Y 2d 162; People v. Rodriguez, 11 N Y 2d 279.) II. Defendant’s objection to the admission of the post-arraignment conversation was sufficient to 
      preserve the issue for review. (Merritt v. Seaman, 6 N. Y. 168; People v. O’Neill, 11 N Y 2d 148; People v. Coffey, 11 N Y 2d 142; People v. Friola, 11 N Y 2d 157.) III. The court, having ruled that defendant’s statements never at any time constituted a confession, erroneously rejected defendant’s offer to put in evidence exculpatory matter forming a part of these statements. The court could not subsequently during its charge completely reverse itself and unequivocally instruct the jury that these same statements were a confession. (People ex rel. Perkins v. Moss, 187 N. Y. 410; People v. Miller, 247 App. Div. 489.) IV. When fundamental requirements of a fair trial have been disregarded, a new trial must be granted although there is no doubt as to the sufficiency of the evidence for a conviction. (People v. Rosenfeld, 11 N Y 2d 290; People v. Mleczko, 298 N. Y. 153; People v. Marendi, 213 N. Y. 600.)
    
      Edward S. Silver, District Attorney {William I. Siegel of counsel), for respondent.
    I. Appellant’s guilt was established beyond a reasonable doubt. No errors of law were committed upon the trial which affect the judgment of conviction. (People v. Lee, 308 N. Y. 302; People v. Di Biasi, 7 N Y 2d 544; People v. Waterman, 9 N Y 2d 561; People v. Meyer, 11 N Y 2d 162; People v. Rodriguez, 11 N Y 2d 279.) II. This court’s jurisdiction is constitutionally limited in all except capital cases to the consideration and decision of questions of law alone. (People v. Boas, 92 N. Y. 560; People v. Ledwon, 153 N. Y. 10; People v. Helmer, 154 N. Y. 596; People v. Sherlock, 166 N. Y. 180; People v. McCarthy, 250 N. Y. 358; People v. Bearden, 290 N. Y. 478; People v. Wrieden, 299 N. Y. 425; People v. Spinello, 303 N. Y. 193.) III. That jurisdiction may be exercised only where the question of law is preserved for the consideration of the court by a proper objection or exception. (People v. Corey, 148 N. Y. 476; People v. Wiechers, 179 N. Y. 459; People v. Cummins, 209 N. Y. 283; People v. Mingey, 190 N. Y. 61; Henze v. People, 82 N. Y. 611; People v. Steinmetz, 240 N. Y. 411; People v. Feld, 305 N. Y. 322; People v. Friola, 11 N Y 2d 157.) IV. The objection did not with sufficient clarity raise the issue of the complete inadmissibility of Ryan’s testimony so as to permit the court to rule upon it on that ground. (Boston & Albany R. R. v. O’Reilly, 158 U. S. 334; Wightman v. Campbell, 217 N. Y. 479; People v. Boodie, 15 A D 2d 459.) V. Where it suited his purposes to do so, defendant repudiated the statement. He may not now claim that at his option he could pick and choose from a repudiated document those portions of his statement which in any event would be no more than repetitive of his sworn testimony. (People v. Nitzberg, 287 N. Y. 183.)
   Chief Judge Desmond:

Defendant was convicted by a Kings County Court jury of two counts of robbery in the first degree and one of kidnapping and the judgment against him was unanimously affirmed by the Appellate Division. He does not question the legal sufficiency of the proof that, with another man, he held up two Brooklyn gas stations in the early morning of May 27, 1957, and forced an attendant in one station to ride with them in their getaway car.

Two rulings as to the admission of testimony are' pointed to as reversible errors. After defendant had been arraigned in a Magistrate’s Court on the indictment, he was committed to the House of Detention and there, 10 days later, he was visited by a detective who testified at the trial. Detective Ryan swore that defendant had given information during that interview as to the whereabouts of the car which had been-used in the holdups (the detective later went to that place and found the car), also that defendant had described the car and admitted that he had received some of the proceeds of the robberies. The admission of this testimony of post-arraignment admissions was illegal and a deprivation of defendant’s constitutional rights as amounting to testimonial compulsion (People v. Meyer, 11 N Y 2d 162; People v. Di Biasi, 7 N Y 2d 544, 551). The only real question on this branch.of the case is as to whether defendant’s counsel entered a sufficient objection. The Appellate Division held that there was no such objection. The trial minutes show that, after Detective Ryan had stated that he had questioned Gallo at the House of Detention on June 10th, this followed: The objection was a bare one without specification of the grounds and it is the general (court-made not statutory, see Code Crim. Pro., § 420-a) rule that grounds for an objection should be stated. But the rule has limitations (People v. Murphy, 135 N. Y. 450, 455; Wightman v. Campbell, 217 N. Y. 479, 482; People v. Coffey, 11 N Y 2d 142; People v. O’Neill, 11 N Y 2d 148; Richardson, Evidence [7th ed.], § 612). Since we are ordering a new trial on a different ground and since a proper objection will, we assume, be voiced at the next trial if the same question is asked, we need not decide whether this evidence point was saved for review.

“ Q. Will you tell us, what did you say to the defendant Gallo and what did he say to you on that particular day of June 10 —
“ The Court: If there is anything that Gallo said concerning anybody else, leave that out. Just tell us what he said about himself.
“ Mr. Aaronson [defendant’s counsel]: I object to that.
“The Court: Overruled.”

We pass to the second error. On rebuttal a stenographer testified to a pre-arraignment question-and-answer interrogation of Gallo by an Assistant District Attorney. The witness read into the record not the whole of this statement but selected parts of it. Defense counsel then asked the court to be allowed to read other parts of this same statement which the defense believed to be exculpatory in nature. The County Judge refused to permit this. In those other parts of the statement defendant had denied ; involvement in the alleged robberies and kidnapping. The rule is: Where use is made in a judicial proceeding of a prior declaration the entire declaration at the time made so far as relevant must be taken together; a party may not utilize only so much of the declaration as is for his benefit, but he must also admit that which is against his interest and the whole" must stand or fall together ” (People ex rel. Perkins v. Moss, 187 N. Y. 410, 428; People v. Miller, 247 App. Div. 489, 493; 7 Wigmore, Evidence [3d ed.], § 2113, p. 523). As against this the prosecutor argues that, since defendant as a witness denied giving any of these answers, he cannot complain of prejudice from the exclusion from evidence of statements that he himself denied making. Whatever the rule may be in such a case, the record before us shows that defendant admitted having the interview but denied making some of the answers read into the record by the stenographer or, at least, expressed some doubt as to making them. He admitted making others of the responses as read to the jury. The general nature of defendant’s testimony on this subject was that he admitted making some of the replies, denied others, and as to still others said that he could not remember. Under the circumstances, fairness required that defendant’s counsel be allowed to read into the record those parts of the statement in which defendant denied his guilt. This is so for another reason, also. The County Judge, as his ground for refusing to let defendant’s attorney bring out the exculpatory parts of the statement, said it was not being offered as a confession. However, in his instructions to the jury the Judge described this same statement as “ a confession or what is tantamount to a confession ”.

The judgment should be reversed and a new trial ordered.

Judges Dye, Fuld, Fboessel, Van Voobhis, Burke and Foster concur.

Judgment reversed, etc.  