I dissent and vote to reverse the judgment of conviction and order a new trial on the following three grounds:
(1) There should have been a severance of this defendant’s trial from that of his codefendant, Miner (see Bruton v United States, 391 US 123; People v Fisher, 249 NY 419; People v Payne, 35 NY2d 22; People v Bornholdt, 33 NY2d 75).
Bruton taught us that it is a denial of a defendant’s constitutional right to confront the witnesses against him when he is compelled to submit to a joint trial where his codefendant does not take the stand and the latter’s confession implicates him in the commission of 'the crime. Here the codefendant Miner did not take the stand, but the People contend that Bruton does not apply because, under People v McNeil (24 NY2d 550), where the defendants make "almost identical” confessions the Bruton error may be disregarded. Assuming that to be so, a comparison of the two confessions clearly shows that on the main issue of whether it was intended that the deceased be killed, there is a substantial divergence between them. In the Miner confession he clearly states that he was hired by the appellant to kill the deceased and he goes into all of the gory details of the deal. The appellant’s confession, on the contrary, nowhere states that he hired Miner to kill his wife (the deceased). Throughout, the language he uses is susceptible of involvement in a less nefarious plot. Under the circumstances, it is 'clear that even under the McNeil rule the appellant was entitled to a severance so that a jury could determine, unaided by the Miner confession, whether he ever really expected his wife to be murdered—an essential element of the crime with which he was charged (see Penal Law, § 125.25).
Furthermore, aside from the appellant’s constitutional right to a severance under Bruton and McNeil, the case of People v Payne (supra, p 27) makes it clear that "the defendant’s right to a separate trial is broader than his right to confrontation and may be found to exist even where the codefendant has remained completely silent both before and during trial”. Here the totality of the proof, except for the appellant’s confession, without which there would have been no triable issue against him, was directed against the codefendant, Miner. Under such circumstances the dissection of the proof by the jury—no matter how ably charged by the court—was *33next to well nigh impossible (cf. Roberts v Russell, 392 US 293).
In reliance upon People v Stanbridge (26 NY2d 1), the majority states that the Bruton rule does not apply "where the confessing defendant testifies at a Huntley hearing, although not taking the stand at the trial”, because there has been an opportunity for cross-examination.
I do not believe that to be a correct statement of the law, for while a defendant who testifies at a Huntley hearing "may be impeached by any of the recognized methods of impeachment”, "[h]e may not, however, be cross-examined as to the merits of the case unless his testimony on direct examination makes such cross-examination relevant” (Richardson, Evidence [Prince, 10th ed], § 550, p 553 [emphasis supplied]; People v Huntley, 46 Misc. 2d 209, affd 27 AD2d 904, affd 21 NY2d 659; People v Lacy, 25 AD2d 788). Furthermore, as Richardson states (§ 550, p 554): "It seems clear also that the testimony given by a defendant in support of his motion to suppress is not admissible against him at the main trial unless the defendant testifies at the trial” (see People v Huntley, 46 Misc 2d 209, 212-213, supra; Harris v New York, 401 US 222).
Here the defendant Miner did not testify at the trial, but his confession made him a silent witness against the appellant without any opportunity by the latter to prove the truth of the story related therein, or to explore the facts to qualify or discredit him.
The statement from People v Stanbridge (supra) upon which the majority relies was obiter dictum, and it seems clear, at least to me, that the main thrust of the affirmance in that case was predicated upon other grounds.1
But assuming that Stanbridge, correctly interpreted, stands, among other things, for the proposition that the constitutional right to confront witnesses has been provided where the *34confessing codefendant has testified at his Huntley hearing, that is not the fact here as a reading of the hearing minutes reveals. In the first place the court dealt with the Huntley hearing of each defendant as a separate proceeding. Thus it said: "We will start off the testimony on the Miner hearing first and as you gentlemen know, as far as the Miner hearing goes, you, Mr. Keogh [appellant’s counsel], of course, are an observer, you cannot ask questions” (emphasis supplied).
Again during the Huntley hearing, the court, in denying appellant’s counsel the right to object to a question, stated that "the fact that the conversations were about him [Safian], you would not have any right on the Huntley hearing and this is no waiver, of course, of any position at the trial or anything else you wish to take.” During the hearing as to Miner, the court turned over Rosario material to counsel for the said defendant, but not to counsel for the appellant, whom he had theretofore determined to be merely "an observer” at the proceedings. When the hearing as to Safian began the court determined that "there was no Rosario material to which the defendant is entitled”, although Rosario material had previously, at the Miner hearing, been turned over to the latter’s attorney.
When Miner took the stand at the Huntley hearing, counsel for the appellant attempted to interpose an objection and he was told by the court: "I don’t think you have any standing to object * * '* and, assuming for the sake of argument you had standing, I overrule the objection anyway.” Thus, all through the testimony of Miner, both on direct and on the Assistant District Attorney’s cross-examination, the "observer” Safian was immobilized—he could not object no matter what the nature of the questions was.
It was not until Miner had testified on direct and had been cross-examined by the Assistant District Attorney, and when no one had any further questions, that the court first indicated that it would permit Mr. Keogh—appellant’s attorney— to cross-examine Miner "even though you are not part of the Miner hearing”. After counsel stated that in view of the court’s previous rulings denying him standing he was caught "completely by surprise”, and after some further discussion of the applicable law, a recess was taken. When the proceedings resumed, counsel for Miner objected to any cross-examination of his client by Safian’s counsel and stated that he would direct his client "not to answer any question Mr. Keogh might *35put to him. That is the defendant Miner’s position, in any event.” After some further discussion, and after Mr. Keogh stated: "I can’t cross-examine a defendant if he won’t answer”, the court indicated that within stated limitations it would permit cross-examination, would direct the defendant Miner to answer, and would not permit his counsel to direct him "not to answer any questions”. It was after all of this—and after having been denied any right to participate in any way during the lengthy Miner hearing—that appellant’s counsel, stating his reasons, declined to cross-examine Miner. Under the circumstances, who could blame him.
But getting away from that issue, the fact still remains that the purpose of the right to confront and cross-examine witnesses is to dispute the verity of what the witness has stated. Here, Miner had testified both on direct examination and on cross-examination that the confession was obtained from him in violation of his constitutional rights. Under such circumstances there was no real opportunity to test the verity of the confessions made by him as opposed to the manner in which they were obtained. The Stanbridge rule, therefore, in any event, giving it the full scope claimed for it by the majority, does not apply, for as this court said in People v Oldring (42 AD2d 737, 738): "Absent meaningful confrontation, the Bruton problem subsists” and the Stanbridge case "is not in point”. Here, because the appellant was denied any right to participate all through the Miner hearing, there was not and could not have been any "meaningful confrontation”. The court’s belated change of mind could not undo the "observer” status forced upon appellant while all of the witnesses were testifying.
(2) In its refusal to charge the lesser included offense of manslaughter, the court committed basic prejudicial error.
What is a lesser included offense is defined by CPL 1.20 (subd 37): "When it is impossible to commit a particular crime without concomitantly committing, by the same conduct, another offense of lesser grade or degree, the latter is, with respect to the former, a 'lesser included offense.’ ” Manslaughter may, of course, be a lesser included offense of murder in the second degree. Such a lesser offense is to be charged "if there is a reasonable view of the evidence which would support a finding that the defendant committed such lesser offense but did not commit the greater” (CPL 300.50, subd 1; emphasis supplied).
*36Accepting that statutory definition at full value, and assuming that it has not been liberalized by the cases so as to mandate a charge of a lesser included offense when "upon any view of the facts, the defendant could properly be found guilty of the lesser crime” (see People v Tai, 39 NY2d 894, 895; emphasis supplied), it is nevertheless obvious in this case that the jury could have found upon a "reasonable view of the evidence” that the appellant intended that Miner should inflict serious bodily harm upon the deceased (which would be manslaughter under subdivision 1 of section 125.20 of the Penal Law, in view of her death), but not kill her (which would be murder under section 125.25 of the Penal Law). Under the circumstances, the appellant was entitled to the charge which he sought as to the lesser offense (see People v Mussenden, 308 NY 558; People v Moran, 246 NY 100; People v Shuman, 37 NY2d 302; People v Stanfield, 36 NY2d 467). In considering whether a charge as to a lesser offense should be given, the court must view the evidence in a light most favorable to the defendant to determine "[if] there is some basis in the evidence for finding the accused innocent of the higher crime, and yet guilty of the lower one” (People v Mussenden, supra, p 563). In attempting to get away from this rule the majority erroneously assumes that the jury was compelled to accept the testimony of Sergeant Small and Captain Norman. It could, of course, have refused it credence.
(3) In his summation the prosecutor said: "While * * * [Safian and Miner] may have had a partnership to do a crime, the basic principles of that type partnership are not much different than any other business partnership. Statements made by or acts done by one partner are binding upon the other. And the same applies, that basic principal [sic], with the situation that we have concerning the facts and circumstances of Deborah Safian’s death.”
It is clear, of course, that analogizing the facts here to a partnership and urging the jury to consider the "statements made by * * * one partner * * * [to be] binding upon the other”, was an incorrect statement of the law. Since Miner’s ex parte confession was extreme in its inculpatory involvement of the appellant, the statement was grossly prejudicial (cf. People v Baker, 23 NY2d 307, 318; People v Adams, 21 NY2d 397, 401-402).
The District Attorney (citing Richardson, Evidencé [Prince, 10th ed], § 244) states in his brief that "such statements, *37because they were made in the course of and in furtherance of the agreement to kill, were admissible against each defendant and binding on each defendant”. That section of Richardson correctly states the law, but it has no application here for the statements (confessions) were not made in furtherance of the agreement to kill, but were ex parte statements given to the police after the nefarious deed had been accomplished. Under such circumstances, the statement of one actor in the play is never binding upon the other—unless, of course, it is adopted by him.2
In fusing the two confessions the District Attorney only exacerbated the Bruton error committed by the trial court in not ordering a severance.
In passing upon just such a summation by a prosecutor, the Court of Appeals in People v Baker (23 NY2d 307, 318, supra) said: "To compound the problem, the prosecutor urged the jury to consider Hamm’s statement against all the defendants. This vitiated any instructions by the trial court (People v. Adams, 21 N Y 2d 397, 401; People v. Lombard, 4 A D 2d 666).”
The record makes it clear that the appellant is an unworthy specimen of humanity, but the Court of Appeals has repeatedly "refused 'to announce a doctrine that the fundamentals of a fair trial need not be respected if there is proof in the record to persuade us of defendant’s guilt’ ” (People v Adams, 21 NY2d 397, 402).
Felix Frankfurter put it another way when he said: "A shocking crime puts law to its severest test”. Affirmance here would flunk that test. There should be a reversal and a new trial.
Hargett, J. P., and Suozzi, J., concur with Titone, J.; *38Shapiro, J., dissents and votes to reverse the judgment and order a new trial, with an opinion.
Judgment of the Supreme Court, Westchester County, rendered January 6, 1976, affirmed.
. In Stanbridge the Court of Appeals said (p 5): "This court, considering the effect of Bruton, has noted the difference in effect where codefendants testify at the trial and are subject to cross-examination (People v. Anthony, 24 N Y 2d 696). It has applied the same rule where opportunity to cross-examine was afforded at a Huntley hearing (People v. Galloway, 24 N Y 2d 935).”
I have read the briefs in People v Galloway (supra) cited for the stated proposition, and find that in that case there was a redaction of the appellant’s name in the introduced confession of his codefendant. In addition, in Galloway, two other principals in the commission of the crime testified fully as People’s witnesses with regard to the same facts, so that the harmless error rule applied.
. The statement in Richardson is: "§ 244. Admissions by One of Several Conspirators. When a conspiracy has been established, the admissions of each co-conspirator made or done in the course and furtherance of the conspiracy are admissible against the others. To illustrate: Where a conspriacy in fraud of creditors between a debtor and his transferee has been proved, the acts and statements of either, in furtherance of the purpose to defraud, are competent against both parties. Dewey v. Moyer, 72 N. Y. 70, affd. 103 U. S. 301 * * * But the admissions of one conspirator, made after the common design has been accomplished or abandoned, are inadmissible against the others. People v. Storrs, 207 N. Y. 147 * * * People v. Ryan, 263 N. Y. 298 * * * People v. Vaccaro, 288 N. Y. 170 * * * People v. Marshall, 306 N. Y. 223 * * * The declarations of an alleged conspirator cannot be received for the purpose of proving the conspiracy. Cuyler v. McCartney, 40 N. Y. 221; Lent v. Shear, 160 N. Y. 462.”