OPINION OF THE COURT
We are presented with the question whether defendant met his burden of establishing, by a preponderance of the evidence, that he lacked criminal responsibility by reason of mental disease or defect (see, Penal Law § 40.15; People v Kohl, 72 NY2d 191). On the basis of all of the evidence at trial, the jury could have reasonably concluded that defendant failed to sustain his burden. The question of sanity is for the trier of fact (see, People v Wood, 12 NY2d 69, 77; People v Enchautegui, 156 AD2d 461, lv denied 76 NY2d 787), and " 'if the record in its entirety presents a fair conflict in the evidence, or if conflicting inferences can properly be drawn from it, "* * * the determination of the jury will not be interfered with, unless it is clearly against the weight of evidence” ’ ” (People v Wood, supra, at 77, quoting People v Horton, 308 NY 1, 12, quoting People v Taylor, 138 NY 398, 405).
The jury "has the right to accept or reject, in whole or in part, the opinion of any expert” (People v Justice, 173 AD2d 144, 146; see also, People v Wood, supra, at 77; People v
In rejecting the affirmative defense, the jury was also entitled to rely on the presumption of sanity (see, People v Kohl, 72 NY2d 191, 199, supra; People v Silver, 33 NY2d 475, 483) and on the evidence of defendant’s rational and deliberate conduct throughout the evening of the shootings. Defendant’s calculated efforts to avoid detection and to escape the police support the conclusion, implicit in the jury’s verdict, that defendant possessed substantial capacity to know and appreciate the nature, consequences and wrongfulness of his conduct.
Defendant is entitled to a new trial, however, because the court erred in denying the motion to suppress the telephone conversation between defendant and his brother, which was surreptitiously overheard by a police officer while defendant was being treated in the hospital emergency room. The conversation was used to show that defendant was rational at the time of the shootings. Investigator Wayne Corsa was allowed to testify that he overheard defendant explain to his brother that he "nailed” Pietrowski, the first shooting victim, for making sexual advances, that he shot a "cop” in self-defense, that he had "more bullet holes in me than Carter’s got liver pills”, and that he was scared.
The call took place when defendant was in custody at the hospital, experiencing intense pain from gunshot wounds. Investigator Corsa had interrogated defendant for 45 minutes without advising defendant of his Miranda rights or identify
The statements overheard by Corsa are clearly the product of illegal police conduct. The record does not support the suppression court’s findings that defendant’s statements were spontaneous and that they were "inadvertently overheard” by Corsa. To be admissible as truly spontaneous statements, "the spontaneity has to be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed” (People v Maerling, 46 NY2d 289, 302-303; see also, People v Grimaldi, 52 NY2d 611, 617). Under this standard, defendant’s statements cannot be characterized as spontaneous. The record of the suppression hearing established that, after defendant invoked his right to counsel, Corsa "endeavored, by subtle maneuvering” to overhear defendant’s conversation (see, People v Harris, 57 NY2d 335, 342, cert denied 460 US 1047). As in People v Grimaldi (52 NY2d 611, supra), the telephone call "was in effect an extension of the illegal questioning, and since the police ultimately arranged, acquiesced in and took affirmative advantage of the phone call, the statements must be deemed inadmissible” (People v Grimaldi, supra, at 617).
The failure to suppress defendant’s statements to his brother was not harmless error. The People rely heavily on that conversation on appeal, as they did at trial, to support their position that defendant never lost his ability to distinguish right and wrong or to appreciate the nature and consequences of his actions. In a case presenting a close question on the issue of defendant’s criminal responsibility, the error in admitting this highly damaging evidence was not harmless (see, People v Crimmins, 36 NY2d 230). Accordingly, the conviction should be reversed and a new trial granted on