People v. Gonzalez ( 1981 )

— Appeal by defendant from a judgment of the Supreme Court, Queens County, rendered June 3, 1980, convicting him of criminal possession of stolen property in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial of the defendant’s motion to suppress a statement. Judgment reversed, on the law, motion granted, and matter remanded to Criminal Term for further proceedings. It is undisputed that the defendant, after his arrest and arrival at the station house, asked to speak with his lawyer. Patrolman Lambert then dialed the number of the defendant’s attorney, and handed the telephone to the defendant. The defendant conversed with the son of Bert Koehler, Jr., the defendant’s trial counsel, who is also a lawyer. Patrolman Lambert then spoke with the young Koehler, who, according to Lambert, stated “if [the defendant] wants to answer your questions, fine.” After the telephone conversation had ended, the defendant made a brief incriminatory statement to Lambert. Assuming, arguendo, that the younger Koehler was in fact the defendant’s attorney, and that he actually made the statement which Lambert attributed to him, we nonetheless conclude that the defendant’s station house confession was obtained in violation of his right to counsel. Where, as here, the defendant has invoked his right to counsel, a subsequent waiver of rights outside the presence of counsel cannot be given legal effect (see People v Cunningham, 49 NY2d 203). A mere telephone call from counsel cannot substitute for the requirement that the attorney be present when the waiver is effected (People v Tompkins, 45 NY2d 748). Accordingly, the statement made by the defendant at the station house must be suppressed. We find no merit to the remaining contentions advanced by the defendant. Mangano, J.P., Rabin and Gulotta, JJ., concur.