Opinion
December 23, 1981
Appeal from the Onondaga County Court, Cunningham, J.
Present — Dillon, P.J., Hancock, Jr., Callahan, Doerr and Moule, JJ.
Judgment unanimously reversed, plea vacated and matter remitted to Onondaga County Court for further proceedings on the indictment. Memorandum: Defendant could not waive his rights, in the absence of counsel, once he had been taken into custody pursuant to an arrest warrant: therefore, his oral and written statements must be suppressed ( People v Samuels, 49 N.Y.2d 218). Although defendant was arrested prior to the decision in People v Samuels ( supra), it must be given retroactive application and the issue of deprivation of effective assistance of counsel may be raised for the first time on appeal ( People v Pepper, 53 N.Y.2d 213; People v Greenwood, 81 A.D.2d 1038). Since it cannot be said with certainty that the failure to suppress the statements played no part in defendant's decision to plead guilty, the plea must be vacated ( People v Harris, 48 N.Y.2d 208; People v Whaley, 78 A.D.2d 588).