People v. Rapinett

Appeal by defendant from a judgment of the Supreme Court, Kings County (Lentol, J.), rendered June 9, 1980, convicting him of murder in the second degree and robbery in the first degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing, of defendant’s motion to suppress certain statements. By order of this court dated January 30, 1984, the case was remitted to Criminal Term to hear and report on the issues of (1) whether defendant was represented by counsel at the time he took a lie detector test in January 1978, and, (2) if he was so represented, whether such representation terminated prior to the time he was questioned by police, in the absence of counsel, shortly after his arrest on January 23, 1979, and the appeal was held in abeyance in the interim (see, People v Rapinett, 99 AD2d 554). Criminal Term (Hutcherson, J.) has now filed its report.

Judgment affirmed.

The record of the hearing is devoid of any evidence that defendant was represented by an attorney, in connection with this or any other matter, on either January 6, 1978, when he submitted to a polygraph test, or January 23, 1979, when he was arrested. Since, at the time of questioning, formal criminal proceedings had not yet been commenced and defendant was not, in fact, represented by an attorney, defendant’s waiver of his right to counsel outside the presence of an attorney was valid (People v Rosa, 65 NY2d 380; People v Mann, 60 NY2d 792, 794; People v Kazmarick, 52 NY2d 322, 328-329). Defendant’s remaining contentions have been reviewed and are without merit. Mollen, P. J., Lazer, Mangano and Brown, JJ., concur.