contained in the consent form. The prosecution made no effort on its direct case to introduce the mattress cover. When the defendant took the stand on his own behalf, he denied that he committed any crime, but he admitted signing the consent form voluntarily, and also admitted that he had not been threatened or coerced. On rebuttal the prosecution recalled the officer who had obtained the mattress cover. He was allowed to testify, over the defendant’s objection, to obtaining the defendant’s signature to the consent form, and to taking the mattress cover from the defendant’s bed in the defendant’s absence, subsequent to the interrogation. The mattress cover was offered and received into evidence. No limiting instructions were requested by the defense at the time of the admission of the evidence or after the court’s charge in relation thereto. Any error in the trial court’s failure to inform the jury that the mattress cover could be considered only on the issue of the defendant’s credibility was, therefore, not preserved for review as a question of law in this court (CPL 470.05, subd 2), nor is this the type of error, which, as a matter of discretion, we will review in the interest of justice (CPL 470.15, subd 6, par [a]; compare
People v Littlejohn, 72 AD2d 515 , with
People v Greenwaldt, 72 AD2d 836 ). The prosecution seeks justification for the introduction of the mattress cover in these circumstances under the rule that "A defendant testifying in his own case to facts indicating his innocence cannot by omissions in his testimony limit questions addressed to credibility in cross-examination to admissions related to those precise facts. Such cross-examination may be addressed to admissions reasonably to be regarded as inconsistent with the direct testimony”.
(People v Johnson, 27 NY2d 119 , 123.) In this case, this rule does not permit the introduction on rebuttal of the blood stained mattress cover previously suppressed by the court. The mattress cover cannot be considered "an admission”, defined as an act or declaration of the defendant inconsistent with his innocence (Richardson, Evidence [Prince, 10th ed], § 212), when the defendant did not authorize its taking by the police or even mention it in the course of his interrogation. Nor did the consent to search form signed by the defendant contain any statement whatever about the mattress cover. As was said in
People v Tramontano ( 65 AD2d 762 ), "before suppressed evidence can be used to impeach a defendant’s credibility he must affirmatively open the door on his direct testimony
by uttering facts in contradiction to the suppressed evidence [citations omitted]” (emphasis added). To rule the mattress cover admissible here under the defendant’s general denial of guilt on his direct testimony would permit the introduction of all incriminating evidence excluded by the court pretrial as soon as a defendant takes the stand and generally denies his guilt. Such a result would not only circumvent all the exclusionary rules of evidence, but would require a defendant to elect between taking the stand in his own behalf, and being confronted by all such incriminating evidence, no matter how obtained, or forfeiting his right to testify; in short, the choice of which of the two constitutional rights to forego: his right to testify or his right not to have illegally seized evidence used against him. Furthermore, before such impeaching evidence can be introduced through another witness in rebuttal, a proper foundation must be laid with the defendant while he is testifying, in his own behalf (Richardson, Evidence [Prince, 10th ed], § 502). Inasmuch as the defendant never mentioned the mattress cover, either on his direct testimony or on cross-examination, the necessary foundation would be impossible in these circumstances. The erroneous admission of such evidence does not mandate a reversal, however, in view of the other overwhelming evidence of the defendant’s guilt, consisting of the victim’s testimony, the corroborating