Opinion
November 14, 1994
Appeal from the County Court, Rockland County (Kelly, J.).
Ordered that the judgment is reversed, on the law, the indictment is dismissed, with prejudice, and the matter is remitted to the County Court, Rockland County, for entry of an order in its discretion pursuant to CPL 160.50. No questions of fact have been raised or considered.
Inasmuch as the criminal prosecution against the defendant had commenced upon the filing of a felony complaint, his right to counsel indelibly attached thereupon (see, People v. Samuels, 49 N.Y.2d 218). Accordingly, his Grand Jury waiver of immunity, obtained without the benefit of counsel, or judicial inquiry (see, People v. Mitchell, 61 N.Y.2d 580; cf., People v White, 56 N.Y.2d 110) was ineffective and caused the defendant to be cloaked in transactional immunity (People v. Chapman, 69 N.Y.2d 497; People v. Valvano, 131 A.D.2d 615). Thus, the indictment must be dismissed (see, People v. Higley, 70 N.Y.2d 624). Bracken, J.P., Miller, Lawrence and Santucci, JJ., concur.