Opinion
Argued May 7, 1981
Decided June 16, 1981
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, MICHAEL W. DUSKAS, J.
Thomas J. Snider for appellant. William H. Power, Jr., District Attorney (Robert M. Pitler and Vivian Berger of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
True it is, as defendant contends, that deprivation of counsel issues need not be preserved (People v Carmine A., 53 N.Y.2d 816; People v Samuels, 49 N.Y.2d 218, 221; People v Ermo, 47 N.Y.2d 863). However, in this case that question is academic. Defendant pleaded guilty in County Court before the trial commenced without having made a motion to suppress the statements which he now contends were elicited in violation of his right to counsel. Since there is, therefore, neither a trial nor a suppression record, nor, for that matter, any factual record on this subject, appellate review is precluded (People v De Mauro, 48 N.Y.2d 892, 893).
I concur in the result reached by the majority, but I base my conclusion on a slightly different rationale. Inasmuch as the defendant in this case did not move to suppress the statement in question before he entered his plea of guilty, he must be deemed to have "waive[d] his right to a judicial determination of any contention" relating to the admissibility of the statement (CPL 710.70, subd 3; see 60.45, subd 2, par [b], cl [ii]; 710.20, subd 3). To be distinguished, of course, are situations in which the defendant actually does make a motion to suppress a statement under CPL article 710, but fails to raise a claimed violation of his State constitutional right to counsel as a potential ground for suppression. In such cases, the State constitutional right to counsel question is deemed "preserved" even though it was not raised below and it may thus properly be entertained by this court as a basis for suppression (e.g., People v Samuels, 49 N.Y.2d 218, 221; People v Dean, 47 N.Y.2d 967; compare People v Ermo, 47 N.Y.2d 863 [State constitutional right to counsel issue "preserved" although not raised during suppression hearing], with People v Tutt, 38 N.Y.2d 1011 [Federal constitutional right to specific Miranda warning not "preserved" because it was not raised during suppression hearing]).
Judges JONES, WACHTLER, FUCHSBERG and MEYER concur; Judge GABRIELLI concurs in a separate opinion in which Chief Judge COOKE and Judge JASEN concur.
Order affirmed in a memorandum.