Opinion
February 11, 1985
Appeal from the Supreme Court, Suffolk County (McInerney, J.).
Judgment affirmed.
On July 7, 1982, defendant was questioned by Detective McCabe of the Suffolk County Police Department about a stolen and forged check payable to one Fernando Carrasco (the Carrasco check). The defendant was arraigned on that charge the next day and released. On July 26, 1982 Detective McBride of the same police department questioned defendant pursuant to his investigation of a stolen Treasury check payable to one Lillie Sellers (the Sellers check).
On appeal defendant argues that the statements he made to McBride should have been suppressed because they were obtained in violation of his right to counsel. It is his position that his right to counsel indelibly attached at the arraignment on the charges relating to the Carrasco check and precluded uncounseled interrogation about the subsequent charges relating to the Sellers check. We disagree.
The commencement of formal adversary proceedings, including arraignment, triggers the defendant's right to counsel ( see, People v Di Biasi, 7 N.Y.2d 544; People v Meyer, 11 N.Y.2d 162). Once this protection has attached, it renders ineffective any attempted waiver of counsel, outside of counsel's presence, with respect to the pending charge ( see, People v Samuels, 49 N.Y.2d 218; People v Settles, 46 N.Y.2d 154). Moreover, with respect to subsequent unrelated charges, the defendant is also protected — but only in those instances when he was actually represented by an attorney on the prior still-pending charge ( People v Bartolomeo, 53 N.Y.2d 225; People v Kazmarick, 52 N.Y.2d 322, 324). If the suspect is not, in fact, represented by counsel in connection with the prior charge, then the police are not barred from questioning the suspect on the new matter ( see, People v Hawkins, 55 N.Y.2d 474, 484, n 3, cert denied 459 U.S. 846; People v Kazmarick, supra).
In the instant case, the parties stipulated that the defendant proceeded pro se with reference to both arrests until September 1982. Since defendant was not in fact represented by an attorney before July 26, 1982, he effectively waived his Miranda rights when he was questioned by McBride on the subsequent charge.
We have considered defendant's remaining contentions and find them to be without merit. Mollen, P.J., Titone, Thompson and Bracken, JJ., concur.