Opinion
Argued October 8, 1982
Decided November 16, 1982
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, IRAD S. INGRAHAM, J.
Robert J. Simpson, District Attorney, for appellant.
La Vern M. Brister for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed.
A new trial is warranted to resolve the issue of whether defendant invoked his right to counsel prior to making certain incriminating statements. In People v Pepper ( 53 N.Y.2d 213), we determined that the principle enunciated in People v Cunningham ( 49 N.Y.2d 203), that once a suspect in custody requests the assistance of counsel he cannot be questioned further in the absence of an attorney, must be applied retroactively. Inasmuch as the defendant made a suppression motion in connection with his original trial, he may now assert his Cunningham argument on the appeal from his retrial (see People v Sanders, 56 N.Y.2d 51, 66).
In addition, we believe that the trial court erred in refusing defendant's requested charge on the issue of voluntariness. Defendant sought to have the court charge that the testimony of two witnesses who stated that the defendant had asked for counsel could be considered by the jury in determining the voluntariness of the defendant's subsequent confession. The charge was relevant to an issue before the jury and we perceive no valid reason for its denial.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur.
Order affirmed in a memorandum.