Opinion
December 23, 1980
Appeal from the Onondaga County Court.
Present — Dillon, P.J., Simons, Schnepp, Callahan and Doerr, JJ.
Judgment unanimously reversed, motion to suppress granted and matter remitted to Onondaga County Court for further proceedings on the indictment. Memorandum: On May 23, 1977 defendant was arrested on a warrant charging him with sexual abuse, first degree, and was committed to Onondaga County Jail. On May 24 he was arraigned and counsel assigned. On May 30, the date we are concerned with, counsel had not yet met with defendant but on that day the police had defendant brought from the jail to the investigator's office to question him about the unrelated charges which are the subject of this criminal proceeding. After interrogation the defendant gave the police an inculpatory statement. He now contends, and correctly so, that the statement should be suppressed because it was obtained without valid waiver of his rights in the absence of counsel (see People v. Rogers, 48 N.Y.2d 167). The issue is properly before us although not raised below (see People v. Cullen, 50 N.Y.2d 168, 174; People v Samuels, 49 N.Y.2d 218).