Ordered that the judgment is reversed, as a matter of discretion in the interest of justice, and a new trial is ordered.
The evidence adduced by the prosecution tended to establish that the defendant sold certain narcotic substances to an undercover officer while inside the office of a car service located at 110-53 Sutphin Boulevard. However, the defense produced witnesses who testified that they were with the defendant at a nearby grocery store when, without apparent cause, the defendant was arrested by police officers. Another defense witness testified that she witnessed several police officers arrest two men outside of the grocery store.
The prosecutor, during cross-examination of the latter defense witness, repeatedly called upon her to confirm or deny the truth of various assertions made by the defendant during the course of his Wade/Mapp hearing testimony. The prosecutor was attempting, in effect, either to impeach this witness' credibility by revealing to the jury the conflicts between her testimony and the defendant's hearing testimony, or, as is more likely, to destroy the defendant's credibility (even though he did not testify at trial) by revealing to the jury that his pretrial hearing testimony conflicted with that of his own witness. The use of the defendant's pretrial hearing testimony in this way not only violated the rules of evidence (since the defendant's hearing testimony did not contain admissions), but also violated the rule of constitutional law announced in Simmons v. United States ( 390 U.S. 377, 394 [Mapp hearing testimony of defendant not admissible as proof of guilt]).
We consider this error to be of sufficient magnitude under the circumstances of this case to warrant reversal in the exercise of our interest of justice jurisdiction. Mangano, P.J., Thompson, Bracken and Rubin, JJ., concur.