I dissent and vote to reverse.
Defendant was tried for the crimes of perjury in the first degree and perjury in the second degree on September 22, 1976 arising out of a written sworn statement given to the State Police by the defendant on September 24, 1975 and the oral testimony given by the defendant during a criminal trial of People v Cunningham in January of 1976.
At the end of the People’s case defense counsel renewed his earlier motion for a dismissal of the indictment for the People’s failure to prove that the statements made by the defendant were irreconcilably inconsistent.
Defendant seeks a reversal of his conviction of perjury, in the second degree on the ground that the People have failed to prove the cause of action, on the ground that his statements are not irreconcilably inconsistent and on other grounds.
A review of the record reveals that defendant’s sworn statement to Investigator White and his subsequent courtroom testimony are not irreconcilably inconsistent. The specific accounts of drug transactions with Cunningham described in the sworn statement indicate that they all occurred prior to *71September, 1974. Therefore, defendant’s answer denying that Cunningham sold him any LSD or Bromo in September of 1974 was not irreconcilably inconsistent with his sworn statement. His denial that he paid Cunningham for drugs in September, 1974 was likewise not such an inconsistency. Defendant’s invocation of his Fifth Amendment privilege may have demonstrated an attitude of non-co-operation on his part but this did not give rise to any irreconcilable inconsistencies. Defendant was shown specific groups of purple and pink pills at the Cunningham trial and asked, "Do you know what they are?” His response in the negative cannot be said to have been irreconcilable to his sworn statement which referred to pink and purple pills. The defendant had no way of knowing the content of the pills displayed to him at the trial nor of specifically identifying them. He did state that he had seen pills that appeared the same. Defendant, when asked if he ever purchased anything else from Cunningham, replied in the negative. This question was indefinite as to the time, place and context. Preceding questions referred to specific items of jewelry purchased and not to drugs and what the questioner was referring to was unclear. The defendant’s answer to that question cannot be said to be irreconcilably inconsistent.
It was reversible error for the trial court to deny defendant’s motion of dismissal, made at the close of the People’s case and at the close of the trial.
The defendant was found guilty of section 210.10 of the Penal Law which reads as follows: "A person is guilty of perjury in the second degree when he swears falsely and when his false statement is (a) made in a subscribed written instrument for which an oath is required by law, and (b) made with intent to mislead a public servant in the performance of his official functions, and (c) material to the action, proceeding or matter involved.
"Perjury in the second degree is a class E felony.”
Section 210.00 of the Penal Law defines the terms used in the perjury statutes. Subdivision 4 defines "Oath required by law” as follows: "An affidavit, deposition or other subscribed written instrument is one for which an 'oath is required by law’ when, absent an oath or swearing thereto, it does not or would not, according to statute or appropriate regulatory provisions, have legal efficacy in a court of law or before any public or governmental body, agency or public servant to whom it is or might be submitted.”
*72This defendant gave to the State Police a statement under oath regarding his drug dealings with Ronald Cunningham who had previously been indicted. The indictment against Cunningham was never introduced at the trial so that its precise nature remains unclear. Testimony at trial alluded to the fact that the defendant Cunningham was charged with drug violations.
There is no statute in New York mandating that the statements which were made by the defendant to State Police be made under oath nor is there any appropriate regulatory provision to this effect. Absent such a statutory or regulatory provision, the crime of perjury in the second degree could not have been committed (People v Lillis, 3 AD2d 44; People v Frisbie, 68 Misc 2d 814, revd on other grounds 40 AD2d 334).
It was error to submit the crime of perjury in the second degree to the jury. The evidence thereof, as a matter of law, did not establish all the elements of the crime of perjury in the second degree. This error would necessitate a new trial. However, due to the failure of proof as previously noted, a dismissal of the indictment is required here.
Defendant, on this appeal, further contends that the jury was misled by extraneous matters presented at trial. It is to be noted that the entire sworn statement taken from defendant by Investigator White was ruled admissible by the trial court over the objection of defense counsel. This sworn statement indeed contained admissions of other dealings in drugs by defendant and permeated the trial with proof of other crimes for which the defendant was not on trial. These matters most probably would have had a prejudicial effect on the jury. Further, defendant did not have personal counsel to advise him regarding his invocation of his Fifth Amendment rights during the course of the trial. He attempted to consult with defense counsel assigned to him for other purposes but the attorney declined to advise him on this matter. These rulings by the trial court were erroneous.
Thus, in view of the errors of law and fact mentioned above and in view of the cumulative effect of these errors, as a matter of law and in the interests of justice, the conviction should be reversed and the indictment dismissed.
Koreman, P. J., Mahoney and Main, JJ., concur with Kane, J.; Mikoll, J., dissents and votes to reverse in an opinion.
*73Judgment affirmed.