Appellate Division of the Supreme Court of New York, Second DepartmentOct 24, 1994
208 A.D.2d 860 (N.Y. App. Div. 1994)
208 A.D.2d 860618 N.Y.S.2d 726

October 24, 1994

Appeal from the Supreme Court, Queens County (Appelman, J.).

Ordered that the judgment is reversed, on the law, that branch of the defendant's omnibus motion which was to suppress his statements to law enforcement officials is granted, and a new trial is ordered. No questions of fact were raised or considered.

It is well settled that "[o]nce a lawyer has entered a criminal proceeding representing a defendant in connection with criminal charges under investigation, the defendant in custody may not waive his right to counsel in the absence of the lawyer" (People v. Hobson, 39 N.Y.2d 479, 481; People v. Rogers, 48 N.Y.2d 167, 173). In such cases, the right to counsel is said to have indelibly attached, and there can be no effective waiver of counsel unless made in the presence of counsel (see, People v Bing, 76 N.Y.2d 331, 339). Here, although the defendant, who was under arrest for the crime, indicated his willingness to make a statement after being given his Miranda warnings, he also stated that he would not sign anything, on the advice of his counsel, whose card he showed to the arresting officer. Without contacting the defendant's attorney, the officer took the defendant's statement. As the People correctly conceded at oral argument, the defendant's waiver was ineffective, and his statement, taken in violation of his right to counsel, should have been suppressed. However, we cannot conclude, as the People contend, that the erroneous introduction of the statement on the People's direct case was harmless beyond a reasonable doubt. Therefore a new trial is required.

Further, we note that, at trial, the Supreme Court improperly limited the defendant's testimony regarding the victim's prior specific acts of violence toward him (see, People v. Miller, 39 N.Y.2d 543). Bracken, J.P., Copertino, Joy and Altman, JJ., concur.