dissents and votes to reverse in the following memorandum. Mikoll, J. (dissenting). I respectfully dissent. The factual pattern of this case involves a defendant who voluntarily came to the Binghamton Police Station in response to a message that the police wished to see him. Defendant had previously consulted an attorney with whom he discussed what he thought the police wished to see him about. The attorney told him to go to the station but not to sign anything. Upon appearing at the station, defendant advised the police that he had a lawyer who had instructed him to come to the station but not to sign anything. The police read Miranda warnings to defendant. Defendant refused to sign an acknowledgment that these rights had been read to him. The police then questioned him about an incident involving a Mark Zduniak. Defendant told them that Mark had attacked him and he had run away after pushing Mark. At this point McAvoy, defendant’s counsel, called and spoke to the police and advised them that defendant was not to sign anything. The police told him that they were questioning defendant about *655other incidents. They also said that defendant refused to sign an acknowledgment that his Miranda rights had been given to him. The attorney told the police to tell defendant that he could sign the Miranda acknowledgment and that he could discuss the other incidents, but he wanted to see any statement before defendant signed it. This information was relayed to defendant. Defendant signed the Miranda acknowledgment and continued to speak to the police. The police proceeded to question him about his furtive movements on April 11, when he was seen by police on Main Street and had run away. Defendant explained that he ran because he thought the police may have wanted him for something. The police said that they did want him because he fit the description of a person who had attacked a young male earlier that evening. Defendant said he was that person but he did not know how much he ought to tell about it without talking to his attorney. The police then said that defendant fit the description of an assailant on several other incidents involving attacks on young males. Defendant told the police that he might need help and if he did tell them about the incidents, he did not want them to tell anybody about it, including his attorney. Defendant asked if he could sign himself into a State hospital and not be charged. He was informed that he would have to be charged. Defendant asked permission to call his attorney. The questioning ceased at this point. Defendant sought to have the statements suppressed on the ground that they were taken in the absence of his counsel without a valid waiver of his right to counsel. It hardly needs reiteration that when a lawyer has entered a proceeding representing a defendant in connection with criminal charges under investigation, and the police are aware that the person being investigated has counsel, they cannot question the defendant without his counsel being present unless a waiver of the right to counsel is made in the attorney’s presence (People v Kazmarick, 52 NY2d 322; People v Skinner, 52 NY2d 24). Under the facts in the instant case, defendant’s attorney could not unilaterally waive defendant’s right to counsel. The right to waive counsel belongs to defendant and is to be made only after consultation with his counsel. From these facts, it cannot be concluded that there was either an intelligent or a competent waiver of counsel (People v Hobson, 39 NY2d 479). This case is totally unlike People v Yut Wai Tom (53 NY2d 44), cited by the majority for the proposition that waiver of counsel can occur telephonically. The statements made by defendant should have been suppressed. Their admission constitutes error of constitutional dimensions requiring a reversal of the conviction.