People v. De Renzzio , 19 N.Y.2d 45 ( 1966 )

Chief Judge Desmond and Fuld, J.

(dissenting). An incriminatory statement was'taken from the defendant after his indictment and while he did not have the assistance of counsel. The taking of this statement and its subsequent introduction into evidence violated the defendant’s right to counsel and his privilege against self incrimination. (People v. Waterman, 9 N Y 2d 561; Massiah v. United States, 377 U. S. 201.)

The defendant’s failure to object to the introduction of this evidence at his trial does not preclude him from raising the question on appeal, for no exception is necessary to gain direct “ appellate review [of] a deprivation of a fundamental constitutional right”. (People v. McLucas, 15 N Y 2d 167, 172; O’Connor v. Ohio, 385 U. S. 92.)

Opinion by Judge Beiigan. All concur, Judges Burke and Keating in separate opinions, except Chief Judge Desmond and Judge Fuld who dissent and vote to reverse in a memorandum.

Judgment affirmed.