(dissenting). I respectfully dissent.
This case was submitted to the jury by the defendant on the sole issue of whether defendant was guilty not of murder in the second degree but only of manslaughter in the first degree because he was acting under extreme emotional disturbance. Defendant conceded to the jury his guilt of manslaughter in the first degree and of assault. In my view the judgment of conviction should be affirmed. The defendant here took the stand in his own defense and testified. He confessed in open court before the jury. He described the crimes committed fully, in as much, if not more, detail than contained in the written confession. Defendant made affirmative use of the very evidence he earlier claimed was inadmissible. In so doing he effectively waived any error in its admission in the trial and did not preserve the alleged error for appellate review (People v Di Piazza, 24 NY2d 342, 352; People v De Renzzio, 19 NY2d 45; People v Rutigliano, 261 NY 103; Hayden v Palmer, 2 Hill 205, 209-210; Gale v Shillock, 4 Dak 182, 196; People v Workman, 283 App Div 1066, 1067, affd 308 NY 668; Paperno and Goldstein, Criminal Procedure in New York [rev ed], part II, § 46, p 101; 1 Wigmore, Evidence [3d ed], § 18, pp 344-345). While it is true that where constitutional error is involved, as here, it has been held that the defendant must do more than merely waive his earlier objection to the admission of evidence (People v Arthur, 22 NY2d 325, 329; United States ex rel. Cruz v La Vallee, 448 F2d 671), the defendant has done just that here. Although defendant originally objected to the admission of the confession into evidence, later, during his own case, he departed from that course. He testified to the very same evidence in support of his obvious objective to convince the jury that his emotional state at the time of the event was such as to prevent his conviction of murder in the second degree. Indeed, he also adopted the confession as his own in his psychiatric testimony toward that end.
*78This trial strategy objective is made ever so clear in the summation of defense counsel when he told the jury: "There is no question from the defendant’s standpoint he was involved, was present and participated in the shooting of Anita Albro. I think the only significant question, which in no way exonerated him, was who fired the shots that hit her. I don’t think there is any question from the proof or any question from the defendant’s testimony at least one of the shots he fired struck the deceased. I don’t think there is any question and there is no argument being advanced that you should find him not guilty or exonerate him in the homicide of Anita Albro. I think at best the only clearly delineated issue is the question of the mental state of the defendant himself.”
At another point defense counsel stated: "There is no question of guilt. We are not asking you to consider exonerating this defendant.”
And finally defendant’s counsel pleaded: "It’s not a crime to be exonerated. It’s a crime you must in your conscious [sic] decide in the exercise of mercy whether or not this was murder or manslaughter. Whether or not in the situation of the defendant as he himself saw it you will exercise [sic] and allow the reduction of this charge to manslaughter. At this time ladies and gentlemen, the District Attorney will have an opportunity to make his summary.”
There is a well-established principle in our law, pertinent here, that an appellate court will not permit a defendant, who affirmatively utilized and sought to benefit from error he placed before the jury, to thereafter on appeal claim the benefit of that error (Johnson v United States, 318 US 189, 199-201; People v Thompson, 41 NY 1, 6-7). We should not ignore this principle on the facts in this record. Moreover, the defendant had a perfect right under our adversary system to adopt a trial strategy which he deemed most beneficial to the interests of his client at the time (People v De Renzzio, supra; see People v Davis, 43 NY2d 17, 28-29). In the De Renzzio case the Court of Appeals stated (19 NY2d 45, 50-51):
"The Constitution in guaranteeing the accused in a criminal case the 'Assistance of Counsel for his defence’ deals neither with a shadowy figure standing beside the accused nor with an abstract idea. It envisages a lawyer, skilled in advocacy, a match for the prosecutor, and in full control of the management of the defense at the trial.
*79"If such a lawyer chooses not to raise a point of constitutional law in a professionally competent defense, either because he believes he could use material affirmatively to advantage or because he believes it better for his client not to raise it, we would work fundamental changes in the adversary system if we determine he should have done that which he had decided advisedly not to do.”
The waiver of alleged error because of the affirmative use of erroneous evidence for purposes of trial strategy and trial tactics is a doctrine inherent in the adversary system and in our system of appellate review. In my view it is a separate and distinct doctrine which does not depend upon an analysis of harmless error for its application. It is the same type of waiver one exercises when he chooses to take the stand in his own defense and thereby gives up his constitutional right not to be a witness against himself.
The case at bar is also distinguishable from the Court of Appeals holding in People v Grant (45 NY2d 366) where the defendant’s conviction was based upon a plea of guilty and not a jury verdict after trial. The court there expressly noted that defendant did not waive his right to appeal and have the confession suppressed at the time he entered his plea (People v Grant, supra, p 379). Without the waiver, the court attempted to apply the harmless error doctrine to excuse the error that occurred in the suppression ruling. The instant situation is different in that a waiver occurred through the employment of a trial strategy in the affirmative use of the inadmissible evidence. It is not clear under the Grant holding that the harmless error doctrine is necessarily applicable to the instant case.
It is also noteworthy that defendant Albro was represented by capable counsel during the course of the trial when the trial strategy decision was made. Thus, People v Felder (47 NY2d 287), which held that the harmless error doctrine was not applicable in a situation where defendant’s trial representation was by an unlicensed person because it denied defendant of his fundamental right to a fair trial, does not apply to the case at bar.
Nevertheless, even if it were necessary to apply the constitutional harmless error doctrine to this case (People v Crimmins, 36 NY2d 230, 237-241), it appears from my view that the test is met here. The proof of guilt, independent of the written confession offered by the People, was overwhelming. *80Nor can it be said that the written confession offered by the People contributed to the verdict after the jury heard the full confession from the defendant’s own lips and after the written confession was, in effect, adopted by the defense as its own. Further, defendant failed to point to any significant errors in the confession or to deny its contents in any material way. Thus, in fact, the confession legitimately remained before the jury since the defendant also placed it there. Its original significance was blunted and subsumed by the later actions of the defense.
In my view it is unnecessary to review the merits of defendant’s contentions which all relate to the admissibility of the confession and admissions of defendant at trial. This issue, as I previously indicated, was not preserved for review by this court. However, I also disagree with the majority’s conclusion that it is necessary to remand this case for an evidentiary hearing. The evidence indicates that defendant was at least in such custodial surroundings as to be "in custody” for purposes of invoking his Miranda rights at the time the police obtained the confession from him. Therefore, if I were to reach the merits under the holding of People v Rogers (48 NY2d 167), I would conclude that its ruling would apply. The judgment should be affirmed.
Greenblott, Sweeney and Staley, Jr., JJ., concur with Mahoney, P. J.; Mikoll, J., dissents and votes to affirm in an opinion.
Decision withheld, and matter remitted to the County Court of Schuyler County for further proceedings not inconsistent herewith.