I dissent and vote to reverse the judgment and order a new trial.
The defendant was convicted after trial of the crime of attempted robbery in the first degree. At the Huntley hearing, a police officer testified that he found the defendant lying on the floor of the vestibule of an apartment building and the complainant holding a gun, standing over the defendant. The defendant was bleeding from wounds in his arm and leg; by his side, a foot away, was another gun. The police officer testified that he heard the defendant "hollering” that the complainant had "shot him for nothing.” Following the Huntley hearing the court ruled that the statement was voluntary and could be introduced into evidence by the prosecution.
However, the prosecution chose not to use the statement and, indeed, before the trial began the prosecution moved to preclude the statement on the grounds that it was self-serving, not spontaneous, and was hearsay. The court granted the motion. Hence, the jury did not receive the full evidence of what the police officer encountered on reaching the scene a few minutes after the confrontation between the complainant and the defendant. I am persuaded that this was error and that the defendant should have a new trial, at which this evidence would be admissible.
*48The theory of the prosecution, based on the testimony of the complainant, was that the defendant had attempted to rob the complainant with a gun in the vestibule and hallway of the apartment building where the complainant lived; that the complainant drew his own gun and fired on the defendant, wounding him; that the complainant commanded the defendant to sit on the floor; that the complainant told his wife to call the police; and that she had done so. The defendant did not testify. No fingerprints were found on the gun lying near the defendant which were susceptible of interpretation and the gun was not traced to the defendant.
The statement was technically hearsay, since it was an extrajudicial utterance (see 5 Wigmore, Evidence [Chadbourn rev, 1974], § 1361). It should not have been excluded, however, because it was self-serving (cf. Richardson, Evidence [10th ed], § 358). It was properly admissible on any one of three grounds:
1. It was a statement after the act, showing the defendant’s then existing state of mind, from which his state of mind at the time of the act could be inferred (see People v Strewl, 246 App Div 400; State v Baldwin, 47 NJ 379, cert den 385 US 980; Walters v State, 39 Ala App 50; cf. People v Lewis, 246 App Div 93, 99, concurring opn of Hill, P. J.; see, generally, 6 Wigmore, Evidence [Chadbourn rev, 1976], § 1732, pp 161-162). The hearsay statement is not suspect because of any doubt that it was not made; the police officer’s testimony insures the authenticity that the defendant said it. Moreover, the statement elucidates an ambivalent scene that the officer saw: which of the two—the complainant or the defendant—was the aggressor and which was the victim?
2. It was a spontaneous statement made shortly after the act (see People v Del Vermo, 192 NY 470, 486).
3. It was a statement which, as a verbal act, was material to the issue, assisted in explaining equivocal conduct, gave legal significance to the conduct, and accompanied the conduct (see 6 Wigmore, Evidence [Chadbourn rev, 1976], § 1745, p 193) and is recognized as admissible evidence (Waldele v New York Cent. & Hudson Riv. R. R. Co., 95 NY 274; Hine v New York El. R. R. Co., 149 NY 154; People v De Simone, 225 NY 261).
We should not restrict the reception of evidence which bears closely on the guilt of the defendant merely on account that it is hearsay (see, e.g., People v Arnold, 34 NY2d 548, 549-550; cf. Fed Rules Evidence, rule 803 [US Code, tit 28, Appendix], in listing classes of utterances not excluded by hearsay). *49Particularly this is so here, where the court first permitted the evidence to be used against the defendant, and then, at the instance of the prosecution, would not allow the defendant to use it in his defense.
The exclusion of the evidence was manifestly prejudicial to the defendant and, for that reason, a new trial is required at which the jury may appraise the weight and credibility of the defendant’s statement in light of the other evidence in the case.
Suozzi and Cohalan, JJ., concur with Titone, J.; Hopkins, J. P., dissents and votes to reverse the judgment and order a new trial, with an opinion.
Judgment of the Supreme Court, Kings County, rendered September 8, 1977, affirmed.