We respectfully dissent. In our view, the introduction of Dr. K. C. Sharma’s testimony on rebuttal violated defendant’s psychologist-client privilege (CPLR 4507). Since Dr. Sharma conceded that the purpose of his examination was to determine if defendant was suicidal and that the conversation was confidential, the challenged statements were clearly within the scope of this privilege. The issue, then, is whether a waiver occurred. The psychologist-client privilege is waived when the client affirmatively puts his mental condition in controversy. In the context of a criminal proceeding, such waiver generally occurs when the defendant propounds a defense of insanity (see People v Edney, 39 NY2d 620; People v AlKanani, 33 NY2d 260, 264, cert den 417 US 916). Here, the defense is based on justification, not insanity. We recognize that defendant called a witness whose testimony was that defendant was unable to injure himself, a posture supportive of his contention of self-defense. It might be argued, as the majority suggests, that by producing this witness, defendant placed his mental condi*960tion into issue vis-á-vis his wounds. It is difficult to perceive, however, how such testimony rises to the equivalent of an insanity defense where a defendant affirmatively places his mental condition in controversy. $ Even in the event of a waiver, however, the psychologist’s testimony on the issue of guilt would be impermissible. A waiver of the privilege only permits the psychologist to testify to those facts which formulate the basis of his medical opinion on the question of a defendant’s mental capacities (see Matter of Lee v County Ct., 27 NY2d 432, 440-442, cert den 404 US 823). Incriminatory statements made by a defendant to a psychologist may not be utilized as part of a prosecution’s case to establish a defendant’s guilt (People v Finn, 64 AD2d 526; see Collins v Auger, 428 F Supp 1079). Here, Dr. Sharma’s rebuttal was utilized not as a vehicle to establish defendant’s mental capacity, but to present incriminatory statements concerning defendant’s wounds. These statements bore significantly on the issue of self-defense and, concomitantly, on the ultimate question of guilt. This basic error was enhanced by the fact that the trial court failed to give cautionary instructions as to the use of the psychologist’s testimony. Compounding this error is the fact that the only other evidence tending to establish that the wounds were self-inflicted is the testimony of the two State Police investigators, who, as the majority aptly notes, questioned defendant in violation of his right to counsel. Since these statements stand in sharp contrast with defendant’s justification defense, a very real possibility exists that they contributed to his conviction (People v Crimmins, 36 NY2d 230, 257). 11 In view of the foregoing, the statements should be suppressed, the conviction reversed, and the matter remitted for a new trial.