Opinion
October 26, 1982
Judgment of the Supreme Court, New York County (Goldman, J.), rendered on May 19, 1980, convicting defendant after a jury trial of murder in the second degree and sentencing him to 15 years to life, and order of the Supreme Court, New York County (Goldman, J.), entered June 1, 1982, denying defendant's motion to vacate the judgment, held in abeyance and the case remanded to the trial court for a further Huntley hearing.
The defendant was convicted of murder in the second degree in a trial that was conducted prior to several decisions by the New York Court of Appeals setting forth principles under which actual or constructive knowledge by investigating police officers of a defendant's representation by counsel in connection with a prior unrelated arrest precludes the right to question defendant in the absence of such counsel (see People v. Bartolomeo, 53 N.Y.2d 225; People v. Servidio, 54 N.Y.2d 951; People v. Smith, 54 N.Y.2d 954). Accordingly, neither party had an appropriate opportunity at the suppression hearing that preceded the trial to elicit evidence bearing on the possible application of those subsequently developed principles. Therefore, the case should be remanded to the trial court for a reopened Huntley hearing to permit further development of evidence relevant to this issue.
Concur — Sandler, J.P., Carro, Asch and Silverman, JJ.