Opinion
Argued November 9, 1987
Decided December 15, 1987
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Stephen Crane, J.
Robert M. Morgenthau, District Attorney (Kathleen E. Fay and Mark Dwyer of counsel), for appellant.
Robert S. Dean and Philip L. Weinstein for respondent.
MEMORANDUM.
The order of the Appellate Division, insofar as appealed from, should be affirmed.
We agree with the majority at the Appellate Division that defendant's written confession and portions of his oral statement were obtained in violation of his right to counsel, which he invoked by his negative response when asked whether he was "willing to answer questions without an attorney present" (see, People v Carmine A., 53 N.Y.2d 816, 818; People v Cunningham, 49 N.Y.2d 203). Accordingly, the Appellate Division properly ruled that such oral and written statements should have been suppressed.
The Appellate Division's determination that defendant's remaining statements were admissible because they were made spontaneously is not before us on this appeal inasmuch as defendant, the party aggrieved by that ruling, is not an appellant here.
Chief Judge WACHTLER and Judges SIMONS, KAYE, ALEXANDER, TITONE, HANCOCK, JR., and BELLACOSA concur.
Order insofar as appealed from affirmed in a memorandum.