Opinion
January 29, 1985
Appeal from the Oswego County Court, Sullivan, Jr., J.
Present — Callahan, J.P., Doerr, Boomer, Green and Schnepp, JJ.
Judgment unanimously reversed, on the law, motion to suppress statement made on March 12, 1979 granted and new trial granted. Memorandum: The trial court erred in failing to suppress an incriminating statement made by defendant on March 12, 1979 which implicated him in a murder, since the statement was obtained in violation of his constitutional right to counsel (see People v Rogers, 48 N.Y.2d 167). The police officer who interrogated defendant on the murder charge was aware of an unrelated charge of criminal possession of stolen property pending against defendant, in which defendant was in fact represented by court-assigned counsel. When an interrogating officer has actual knowledge that there are unrelated charges pending against a suspect he has a duty to inquire whether the suspect is actually represented by counsel on those charges. If the suspect is in fact represented by counsel on the unrelated charge he may not be questioned in the absence of counsel. Absent such inquiry the officer is charged with what the inquiry would have revealed ( People v. Fuschino, 59 N.Y.2d 91; People v. Smith, 54 N.Y.2d 954; People v. Bartolomeo, 53 N.Y.2d 225; People v. Kazmarick, 52 N.Y.2d 322). Although People v. Rogers ( supra) had not been decided when the defendant was interrogated, the rule applies here and, therefore, the judgment of conviction must be reversed (see, e.g., People v. Miller, 54 N.Y.2d 616; People v. Bartolomeo, 53 N.Y.2d 225, supra).