The majority opinion concedes that it was inexcusable error for Criminal Term and the District Attorney to fail to provide defendant inter alia with the Grand Jury minutes of Farrell’s testimony. However, it then denigrates such failure with a bromide that "[t]his [Farrell’s Grand Jury testimony] was consistent with his preliminary hearing testimony, wherein he testified that after receiving the radio message he proceeded to South Conduit”. What the majority fails to perceive in so rationalizing, is that the very consistency between Farrell’s preliminary hearing testimony and Grand Jury testimony renders doubly suspect his subsequent inconsistent sworn testimony at the suppression hearing wherein he stated that he first went to North Conduit after receiving the radio call.
Moreover, it is equally untenable to slough off such failure on the mistaken theory that the Grand Jury minutes were "cumulative in effect” with the preliminary hearing minutes. The doctrine of "cumulative evidence” clearly has no application in this instance. "Cumulative evidence” has been defined as additional evidence of the same kind tending to prove the same point already made. However, evidence of other or different circumstances tending to establish or disprove the same fact is not cumulative (32A CJS, Evidence, § 1016). In the matter at bar, the testimony of the arresting officer that he proceeded first to South Conduit was elicited on two different occasions at two separate forums. Both statements, when considered in tandem, cast serious doubt on the subsequent inconsistent statement elicited at the suppression hearing (cf. People v Johnson, 259 App Div 921). In sum, to deny defendant’s attorney an opportunity to use such double-barrelled ammunition on cross-examination was extremely prejudicial and manifestly deprived defendant of a full and fair hearing.
The majority opinion further disparages the importance of defendant not having the Grand Jury minutes on cross-examination by observing that Farrell, at the suppression hearing, testified that he simply "failed to say”, on the two earlier *313occasions, that he first went to North Conduit. According to the majority, his earlier dual testimony was not inconsistent or contradictory with the subsequent suppression hearing testimony, but was, at most, a failure "to fully set forth the entire chronological order of events.” Yet this dual failure, which could not be weighed by the trier of the facts because the defense attorney was barred from exploiting both statements on cross-examination, strikes at the very core of Farrell’s suppression hearing testimony.
It is manifest that Farrell’s credibility was a crucial issue at the suppression hearing. His testimony at the preliminary hearing, and before the Grand Jury, as contrasted with his suppression hearing testimony, strongly indicates that he and his partner drove directly to South Conduit and Farmers Boulevard in response to the radio call about "a man with a gun”. If such was the case, the frisking or tossing of defendant at South Conduit solely on the basis of the radio run was illegal, since there would have been no legitimate reason to suspect that defendant was carrying a gun (see People v La Pene, 40 NY2d 210, 221-226).
Thus, defendant, for purposes of cross-examination, had a right to examine any and all prior statements made by Farrell regarding his arrest (see People v Gilligan, 39 NY2d 769), and questions of prejudice or harmless error are irrelevant (see People v Peacock, 31 NY2d 907).
Accordingly, I dissent, and vote to reverse the judgment and order and to remand the case to Criminal Term for a de novo suppression hearing before another Justice.
Rabin, J. P., and Hawkins, J., concur with O’Connor, J.; Titone, J., dissents and votes to reverse the judgment and order and to remand the case to Criminal Term for a de novo suppression hearing, before a different Justice, with an opinion, in which Shapiro, J., concurs.
Judgment of the Supreme Court, Queens County, rendered August 7, 1973, and order of the same court, dated June 14, 1973, affirmed.