Smith, J. (concurring). I concur in the reversal of the
judgment and the remand for a new trial because the prosecution did not give to defendant timely notice, or any valid notice, of statements intended to be used at trial and did not demonstrate good cause for failure to do so as required by CPL 710.30 (1) and (2).
Defendant was convicted of four counts of burglary in the first degree and related crimes. Defendant was given timely notice, within 15 days of his arraignment (CPL 710.30 [2]), that the People intended to introduce the following statement at trial: "Defendant asked Officer Napolitano if that was his gun; Defendant admitted to trying to rob Phil[l]ip Vogt but said that he did not get anything and that old man had ulcers and a retarded daughter and that he started to cry and so defendant left him $10.00 U.S.C.”
At a hearing on the motion to suppress this statement, a police officer testified that defendant had made a number of additional statements. It suffices to read a portion of the *43transcript to conclude that defendant was not given notice of the bulk of statements which he made to the police. The transcript of the suppression hearing includes the following testimony by Detective John Ryan on direct examination:
"Q. After you discussed the biographical information, what happened after that? What was discussed, if anything? "A. I asked Mr. Martin what he was doing in the building where he was arrested. "He replied to me something to the effect that he was there to see a friend of his, I believe named Chris. "Q. Okay. Chris Hines? "A. Yes. "Q. Did he say anything else about Chris Hines? "A. I’d have to refer to my notes. "Q. Okay. Please do that. "A. All right. He stated he was visiting a friend, Chris Hines, at that location 226 East 26th Street apartment 6A. The last time he was in New York she was staying at that location. "Q. Okay. What conversation as best you can recall followed that, if any? "A. I asked him then about—I said there was a couple of phone books that were found in the briefcase that you had. I asked him where he had obtained those phone books. "I’d have to refer—can I refer to my notes? "the court: Go ahead. Refer to your notes. Just say I have to refer to my notes. "A. Mr. Martin advised me that he found the phone book with Dr. Goldberger’s name on the street. "He advised me that the green book with the Korean names he purchased from a store on 43rd Street between Seventh and Eight Avenue about two months prior to the interview. "I asked him who was the phone number that he had made a notification to, who was that number. He advised me it was somebody by the name of Paula, that he had met Paula a couple of years ago, and that he has a brother and sister that live on Staten Island. "I then asked Mr. Martin where he got the—where he got the gun that he was found with. At that point Mr. Martin advised me that he didn’t have a gun in his possession. "I advised Mr. Martin that from my interviews of the police *44involved, that according to the records there was no problem with showing that he did possess that weapon. "At that point then he asked me, is that true? And I said yeah, according to the interview with the police had mentioned to me that, all that property that was found on the ledge of the building was his property, and that he had a very serious problem here. "You know, then I mentioned to Mr. Martin if he cooperated in his investigation, that his cooperation would be, you know, referred to the district attorney’s office for consideration. "At that point we had a conversation about at the time there was a police officer that was killed, Scott Gardell in Queens. Mr. Martin indicated that he had information relative to the individual who murdered the police officer. "Q. Is that individual’s name Ralston? "A. Yes. At that point I kind of stopped the interview of what he was arrested for and I conferred with my supervisor about the murder of the police officer. And we had contacted the major case squad at that point. "Q. Was there a name of a particular individual that was from major case squad who was contacted? "A. Yes. A Sergeant Zaroogian. "Q. Now, did—during the course of that conversation or just prior to it, did the defendant say anything else about why he was there at the building where he was arrested? "A. Yes. If I can refer to my notes. He made a comment at 14 hundred he was there supposed to pick up sixty-five hundred dollars from somebody named Carmine Parelli from apartment 6A on the top floor. * * * "Q. On one of those occasions, did the defendant say anything while he was eating the food? "A. Yes, he did. "Q. Tell us about that? "A. He made a remark to the effect that I’m not the world’s greatest shot, but I could have easily taken out Sergeant Marrón and the cop on the vent. "Q. What time was it that he said that? "A. That was approximately 2040 hours, which would be about twenty to nine p.m. "mr. yucevicius: On July 2? *45"the witness: That’s correct. * * * "Q. And did he say anything else about the apartment where he was arrested? "A. Yes. At 2135 he mentioned to me that somebody by the name of Tony Champlian or Champagne he sent him to collect 6 thousand five hundred dollars from somebody named Gloria in apartment 6A. "I asked him why he had a gun with him. And he said the piece was a persuader. * * * "Q. Did you talk to the defendant about the burglary at 240 East 24 Street in apartment 3B there? "me. yucevicius: Objection, it’s leading judge. "the court: Overruled. "A. Yes, I did. "Q. Tell us about that conversion, what did you say? "A. I asked Mr. Martin what had happened in that location just prior to his arrest in the other building. "If I could refer to my notes I would give you an exact quote of what he remarked about that. "Q. Okay. "A. His remarks to me about that incident were T didn’t rob the guy. I didn’t point the gun at him. The gun was in a shoulder holster. Guy gave me a sob story. He told me he had ulcers on his leg. Told me he had a retarded daughter and started crying. I gave him a $10 bill.’ ” After the testimony of Detective Ryan, defendant sought to preclude introduction of the additional statements on the grounds that he had not been given notice of them within 15 days after his arraignment. The prosecutor opposed the motion on the grounds that a notice for some statements had been given and that the content of all of the statements had been given when Rosario material was turned over at the suppression hearing.
In People v O’Doherty (70 NY2d 479 [1987]) the Court of Appeals held that the People could not serve a late notice of intention to introduce a statement where they had not shown good cause for failing to give notice within 15 days of arraignment. There, the incriminating statement concerning a robbery case had been made to a police officer who had arrested the defendant in connection with a subsequent robbery. The police officer in the second case did not notify the police or prosecutor in the first case of the statement until five months *46after the arraignment in the first case. In holding that the People had failed to give timely notice, the Court of Appeals stated that lack of prejudice was irrelevant when notice had not been given. The court stated: "Lack of prejudice to the defendant resulting from the delay does not obviate the need for the People to meet the statutory requirement of good cause before they may be permitted to serve a late notice.” (70 NY2d, supra, at 481.)
Despite the hearing court’s conclusion that the defendant had adequate notice of the additional statements, the People never gave the required statutory notice for the additional statements. In light of People v O'Doherty (supra), the People’s arguments that the defendant was informed of the "essence” of the statements in a timely fashion, that "[it] would have been very difficult to summarize all of the statements,” that the statements were turned over with Rosario material and that there was "no prejudice” to the defendant, are inadequate.
Rosenberger and Ellerin, JJ., concur with Milonas, J. P.; Smith, J., concurs in a separate opinion.
Judgment, Supreme Court, New York County, rendered on September 30, 1987, unanimously reversed, on the law, and the matter remanded for a new trial.