Opinion
Argued December 10, 1969
Decided January 8, 1970
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, ROBERT E. FISCHER, J.
Louis J. Casella, Public Defender ( John E. Murray of counsel), for appellant.
Stephen Smyk, District Attorney ( Stephen E. Powers of counsel), for respondent.
Judgment affirmed; no opinion.
Concur: Judges SCILEPPI, BERGAN, BREITEL and JASEN. Chief Judge FULD and Judge BURKE dissent and vote to reverse and order a new trial on the ground that the statement made by defendant in the absence of counsel should not have been received in evidence ( People v. Arthur, 22 N.Y.2d 325, 329). Taking no part: Judge GIBSON.