People v. Gurnsey ( 1981 )

— Judgment reversed, on the law, motion to suppress granted, and a new trial granted. Memorandum: In his appeal following convictions by a jury for rape in the first degree and unlawful imprisonment in the first degree, defendant contends the court erred in refusing to suppress his statement given to police in the absence of his counsel on pending unrelated charges (see People v Rogers, 48 NY2d 167). Deputy Sheriff Cavalier conceded at the suppression hearing that when he obtained a signed waiver of rights from defendant and questioned him at the Sheriff’s office in the absence of his lawyer, he knew that defendant was free on bail on burglary charges for which defendant had been indicted and had been assigned an attorney. Under People v Kazmarick (52 NY2d 322, 329) and particularly the court’s statement therein that “Obviously, if the suspect informs the police that he has a lawyer on an unrelated pending case his right to counsel on the new matter will indelibly attach and bar interrogation (People v Cunningham, [49 NY2d 203], supra; People v Servidio, [77 AD2d 191], supra)”, we are constrained to reverse and grant a new trial. As contrasted with the circumstances in our decision in People v Smith (79 AD2d 210), decided on the same day as Kazmarick, the police in the case at bar were actually aware that the charges against defendant were still pending and that the defendant was represented by a lawyer. All concur, except Dillon, P. J., who dissents and votes to affirm the judgment in the following memorandum.