an automobile for defendant’s use, although both she and Giarrusso had driven the car. A typewriter and checkwriter found in the rented car’s trunk were established as those used in forging the check passed at Stein-hart’s. Also found in the trunk were several blank and forged checks from the One Stop Travel Agency. A fingerprint expert testified that defendant’s fingerprint was found on one of these blank checks. Finally, Officer Greeley of the State Police testified as to certain oral statements made by the defendant. It appears that Officer Greeley had gone to Whittam’s apartment to question her concerning the theft of checks from One Stop Travel Agency. He had with him a regiscope photograph of Giarrusso taken in connection with alleged forgeries of stolen checks. Following Whittam’s identification of Giarrusso in the photograph, Officer Greeley inquired whether she knew a companion of Giarrusso’s named Paul. Whittam at first denied she knew Paul, but then admitted that defendant was in the bedroom of the apartment. Upon being discovered by Officer Greeley, defendant said to him "I want to make a deal with you.” The trial court erroneously considered this statement made by defendant as a confession and charged the jury as follows: "Now, in this case, ladies and gentlemen, the People have offered in evidence certain oral statements claimed to have been made by the defendant to the police with respect to his participation in the offense charged. The People have submitted these in the belief that they should effect your verdict. But these statements must not be considered by you unless you first determine that the defendant made them voluntarily.” After covering voluntariness, the trial court then instructed the jury with respect to corroboration of confessions: "Now, further with respect to confessions. If you decide to consider the statements of the defendant as a confession based on the law as I have instructed you, you must also know that according to our law a confession alone does not justify a verdict of guilty.” A confession is an express acknowledgment of guilt by the defendant (see, e.g.,
People v Bretagna, 298 NY 323 ; see, also, Richardson, Evidence [10th ed], § 540, p 533), which constitutes the strongest evidence against the party making it
(Hopt v Utah, 110 US 574 ). Improper characterizations of statements as confessions constitute prejudicial error
(People v Thomas, 283 App Div 995 ;
People v Rhodes, 283 App Div 804 ;
People v Doria, 281 App Div 918 ). Although defense counsel failed to except or object to the erroneous charge given in this case (CPL 470.05, subd 2), this does not prevent us from considering the error on appeal when, in our discretion, the interest of justice requires such consideration (CPL 470.15, subd 6, par [a]; see
People v Giamario, 20 AD2d 815 , affid 15 NY2d 939 ). This court has held that, in deciding whether or not to reverse a criminal conviction due to a trial court’s erroneous use of a confession charge, the entire record must be considered to determine the likelihood that the error affected the jury’s verdict
(People v Lewis, 282 App Div 267 ). The Court of Appeals has stated that the possibility of prejudice will vary with the degree to which the court’s description of the defendant’s statement departs from the facts
(People v Kingston, 8 NY2d 384 , 388). Applying these principles to the case at bar, we feel that the interest of justice requires that the judgment of conviction be reversed. At the time he made his statement to Officer Greeley, defendant had just been released from jail, was on parole and did not have permission to be in Albany County. His attempt to "make a deal” under these circumstances cannot be construed as an express acknowledgment of guilt of the crime he is charged with committing. Furthermore, the People did not establish the defendant’s guilt by overwhelming proof. It was a close case, built almost entirely on circumstantial evidence from which