May 7, 1981
Motion granted and upon reargument the order of this court entered on February 19, 1981 ( 80 A.D.2d 527), and the memorandum decision filed therewith are recalled, the memorandum decision vacated, the order resettled and a new memorandum substituted as follows: Appeal from judgment, Supreme Court, New York County, rendered May 17, 1977, convicting defendant, following the denial of his Huntley motion, and after a jury trial, of murder in the second degree and sentencing him to an indeterminate term of 20 years to life, held in abeyance, and the matter is remanded for a reopened Huntley hearing directed to the issue of whether defendant was represented by counsel on January 26, 1976. We stated in our previous memorandum that "It does not appear that [defendant's claim that at the time of questioning on the instant charges he was represented by an attorney on pending charges in Kings County] was or can be controverted." The previous Huntley hearing was held in March, 1977 before the Court of Appeals decision in People v Rogers ( 48 N.Y.2d 167) (Oct., 1979), that representation by counsel even in an unrelated case barred interrogation in the absence of counsel; and our decision was before the decision in People v Kazmarick ( 52 N.Y.2d 322), that this rule generally does not apply unless defendant is actually represented by counsel on the unrelated charge. Thus the previous hearing was directed to the issues as legally relevant only under now superseded law. The District Attorney believes she can show that an "18-B" lawyer filed a notice of appearance in the Brooklyn case the day after defendant was questioned on the instant case. In view of the ambiguity of the record the People are entitled to have the issue of defendant's representation by counsel explored at a hearing directed to that issue. The memorandum decision of this court filed February 19, 1981 is recalled and the foregoing substituted therefor. Resettled order signed and filed.
Concur — Kupferman, J.P., Sullivan, Carro, Silverman and Lynch, JJ.