Opinion
November 28, 1988
Appeal from the County Court, Nassau County (Thorp, J.).
Ordered that the judgment is affirmed.
The fact that there are outstanding charges, to which a defendant's right to counsel has attached, does not preclude questioning on new charges in the absence of counsel, unless the police know or have reason to know that the defendant is actually represented by counsel on the outstanding charges (see, People v Lucarano, 61 N.Y.2d 138, 145).
The record indicates that the arresting officer had filed a misdemeanor complaint on an unrelated matter against the defendant on September 1, 1980. Just prior to the defendant's arrest on September 4, 1980, the officer had superseded the misdemeanor complaint with a felony complaint. Although aware of charges pending against the defendant, the police did not inquire whether the defendant was represented by counsel and are, therefore, chargeable with whatever a reasonable inquiry would have revealed (see, People v. Bartolomeo, 53 N.Y.2d 225).
However, at the Huntley hearing, the defendant failed to meet his burden of proving that he was actually represented by counsel on the pending unrelated charge (see, People v. Rosa, 65 N.Y.2d 380, 388). The defendant's failure to establish actual representation on the pending charge does not present a ground for a new hearing (see, People v. Sepe, 108 A.D.2d 941, lv denied 65 N.Y.2d 820; People v. Donovon, 107 A.D.2d 433, 442; People v. Quarles, 63 N.Y.2d 923, 925; People v. Havelka, 45 N.Y.2d 636, 642-644). Consequently, the defendant's statements regarding the new charges were not subject to suppression. Weinstein, J.P., Bracken, Kunzeman and Rubin, JJ., concur.