The right of an accused to be confronted by the witnesses against him is a fundamental right of constitutional dimension (US Const, 6th, 14th Amends; NY Const, art I, § 6; Douglas v Alabama, 380 US 415; Pointer v Texas, 380 US 400; People v Parker, 57 NY2d 136, 139) which includes and guarantees the right of cross-examination (Douglas v Alabama, supra, at p 418; People v Farruggia, 77 AD2d 447,451). Long ago, in Alford v United States (282 US 687, 692), the Supreme Court recognized that the right “to place the witness in his proper setting and put the weight of his testimony and his credibility to a test * * * [is] one of the safeguards essential to a fair trial”. The law, in short, places primary reliance upon the right of cross-examination as an essential tool for ascertainment of the truth (Davis v Alaska, 415 US 308, 316; United States v De Sisto, 329 F2d 929, 934, cert denied 377 US 979; see, United States v Abel, 469 US _, 105 S Ct 465). Consequently, any significant abridgement of the right to conduct such cross-examination deprives a defendant of a fair trial and necessitates reversal, even in the absence of a showing of specific prejudice (People v Carter, 86 AD2d 451, 457-458). In this case, defendant’s right to cross-examine a key prosecution witness was significantly curtailed. Accordingly, I would reverse the judgment of conviction and order a new trial.
Contrary to the assertions of the majority, the pertinent inquiry in this case is not whether Criminal Term improvidently exercised its discretion by permitting the witness, Mrs. Cheng, to testify. Regardless of Mrs. Cheng’s mental health, her capacity to understand an oath or her ability to testify competently as to what she had seen or heard, the fact remains that she testified fully on direct examination and, thereafter, she exhibited an inability or unwillingness to submit to commensu*164rate cross-examination. As she took the stand for the second day of testimony, after having identified defendant on direct examination, Mrs. Cheng complained of illness, and stated that gangsters from Hong Kong had threatened her and her husband. She also claimed that her husband had threatened her in order to force her to appear in court despite her illness. At this point, Criminal Term held a conference outside the hearing of the jury in order to determine Mrs. Cheng’s fitness to proceed. At the conference, Mrs. Cheng stated that she did not wish to answer any questions posed by defense counsel, nor did she even wish to be in the same room with him. There was also some discussion regarding the witness’ prior history of treatment for mental illness. On the basis of the foregoing, defense counsel moved for a mistrial, and also to have Mrs. Cheng undergo a psychiatric examination, upon the ground that her refusal to proceed would deprive his client of his constitutional right to cross-examine her. Criminal Term granted the motion for a mistrial, recognizing the obvious prejudice that had accrued by reason of the witness’ actions. However, before the jury was discharged, the court granted the prosecutor’s application to conduct a Wade hearing prior to the retrial with respect to the identification testimony of Belinda Cheng. Faced with the prospect of having Belinda Cheng identify his client at a new trial, defense counsel had no choice but to withdraw his mistrial motion and proceed. When the trial resumed, defense counsel moved, inter alia, to strike Mrs. Cheng’s testimony, which motion was denied. The court then instructed the witness to answer the questions posed to her, and she responded, “Don’t ask me too much [sic] questions. I cannot recall so much”. On limited cross-examination, Mrs. Cheng testified that she was “not so certain” that defendant was one of the men who had come into her home and committed the acts in question.
On this record, I must conclude that defendant suffered a significant abridgement of his right to cross-examine Mrs. Cheng and was thereby deprived of a fair trial. Where, as here, adequate cross-examination of a witness is precluded by an unjustified refusal of the witness to submit to cross-examination, or by illness, the witness’ direct examination is rendered incompetent (People v Cole, 43 NY 508; Diocese of Buffalo v McCarthy, 91 AD2d 213, 220; see generally, Richardson, Evidence § 489 [Prince 10th ed]; Fisch, New York Evidence § 342 [2d ed]; 4 Zett, New York Criminal Practice ¶ 28.3 [3] [e]). Thus, in People v Cole (supra), the Court of Appeals held that where a witness became ill after direct examination so as to render cross-examination impossible, the trial court committed reversible *165error by refusing to strike the direct examination (People v Cole, supra, at p 512).
In the case at bar, Criminal Term determined that Mrs. Cheng’s refusal to be cross-examined by defense counsel would deprive defendant of a fair trial and, therefore, the court declared a mistrial (CPL 280.10 [1]). However, once defendant’s motion for a mistrial had been withdrawn, the trial court erred in denying defendant’s subsequent motion to strike the testimony given by Mrs. Cheng on direct examination. The denial of this motion was clearly prejudicial to defendant because Mrs. Cheng’s direct testimony, where coherent, was incriminating; she and Mr. Cheng were the only witnesses who identified defendant at trial. Thus, her statement that she was being forced to testify by her husband, coupled with her admission during limited cross-examination that she was “[n]ot so certain” that defendant was one of the perpetrators of these crimes, served to cast doubt upon both the reliability of her own direct testimony and upon the prosecutor’s entire case. Under these circumstances, Mrs. Cheng’s inability or unwillingness to submit to a full and probing cross-examination by defense counsel rendered her direct testimony incompetent, and therefore it should have been stricken (People v Cole, supra).
Moreover, it is no answer that the defendant’s Federally and State guaranteed rights of confrontation were not violated simply because some testimony unfavorable to the People was elicited from Mrs. Cheng, after she had identified the defendant. As noted by the Second Circuit in United States v Harvey (547 F2d 720, 723): “[e]xercise of [the right of confrontation] is particularly crucial where the witness offers damaging identification testimony, for in the absence of independent contrary evidence, a defendant must rely upon impeachment of the witness’s credibility”. To conclude that the defendant’s rights were not violated under the circumstances present herein, requires speculation as to the comparative impact on the jury of Mrs. Cheng’s identification testimony and her testimony which was unfavorable to the People. This conclusion also requires speculation as to what else, if anything, would have been disclosed had a meaningful opportunity to cross-examine this witness been presented. Such baseless surmise is at odds with the essence of the right of confrontation (see, Davis v Alaska, 415 US 308, 317; Alford v United States, 282 US 687,692, supra). Once it has been determined that the accused has suffered a significant abridgement of his right to cross-examine, our inquiry should end, and we ought not to speculate as to what, if any, prejudice flowed therefrom (see, People v Carter, 86 AD2d 451, 457-458, supra).
*166Nor can I agree that the defendant waived his right to confrontation. Undoubtedly, the criminal law requires the accused to make difficult choices, many of which involve constitutional rights (see, Bordenkircher v Hayes, 434 US 357; McGautha v California, 402 US 183; Matter of Lee v County Ct., 27 NY2d 432, cert denied 404 US 823). However, the choice required of the defendant in the case at bar, viz., to continue the first trial with Mrs. Cheng’s testimony or to proceed with the second trial and the potentially more damaging identification testimony of Belinda Cheng, was tantamount to no choice at all. Waiver of rights cannot exist, the law has held, “where the choice given is not real, and amounts to a choice ‘between the rock and the whirlpool’” (United States v Calhoun, 544 F2d 291, 296-297, quoting from Garrity v New Jersey, 385 US 493,498). Moreover, even if defendant’s choice to forego a mistrial is viewed as a waiver, it surely did not operate to waive his right to have Mrs. Cheng’s direct testimony stricken, upon her failure to submit to full cross-examination, inasmuch as the motion to strike was made, and denied, after the mistrial motion had been withdrawn.
Finally, the record in the case at bar is shrouded in a mist of confusion surrounding Mrs. Cheng’s testimony which, coupled with the troublesome manner in which this case proceeded, causes concern as to the fairness of the verdict. While it is true that all criminal defendants are entitled to a fair trial, not a perfect one (People v Harris, 84 AD2d 63,110, affd 57 NY2d 335, cert denied 460 US 1047), I am not persuaded that, in the view of the confusion permeating this case, the defendant was afforded a fair trial. Accordingly, I cast my vote for reversal.
Mollen, P. J., and Rubin, J., concur with Thompson, J.; Bracken, J., votes to reverse the judgment and order a new trial, in an opinion in which Eiber, J., concurs.
Judgment of the Supreme Court, Queens County, rendered August 2, 1983, affirmed.