Opinion
February 28, 1983
Appeal from the Supreme Court, Monroe County, Kennedy, J.
Present — Hancock, Jr., J.P., Callahan, Doerr, Denman and Boomer, JJ.
Case held, decision reserved and matter remitted to Monroe Supreme Court for hearing, in accordance with the following memorandum: On this appeal from a judgment of conviction for rape in the first degree, defendant contends that he was deprived of his right to counsel because he was interrogated by the police in the absence of an attorney who was representing him on a pending charge (see People v. Smith, 54 N.Y.2d 954; People v. Bartolomeo, 53 N.Y.2d 225; People v. Rogers, 48 N.Y.2d 167). While acknowledging that this issue was not raised in the trial court, defendant correctly observes that his trial took place prior to Rogers ( supra) and that the Court of Appeals has held that the Rogers rule should be applied to cases still on appellate review (see People v. Albro, 52 N.Y.2d 619, 624; People v. Bell, 50 N.Y.2d 869, 871). Because this issue was not before the suppression court (see People v. Tindal, 69 A.D.2d 58), the record is insufficient for us to determine whether defendant was represented by an attorney on a pending charge, and if he was, whether the police knew or should have known of such representation (see People v. Servidio, 54 N.Y.2d 951). We thus remit the matter for a hearing to develop a record on this issue (see People v. Baldi, 54 N.Y.2d 137, 152; People v. Johnson, 89 A.D.2d 812). We have examined the other issues raised by defendant and find them to be lacking in merit.