People v. Cartagena

78 A.D.2d 891, 433 N.Y.S.2d 36, 1980 N.Y. App. Div. LEXIS 13628

Opinion

Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered April 27, 1979, convicting him of attempted manslaughter in the second degree, upon his plea of guilty, and sentencing him as a second felony offender. The appeal brings up for review the denial, after a hearing, of defendant’s motion to suppress statements. Judgment reversed, as a matter of discretion in the interest of justice, motion to suppress granted, plea vacated, and case remitted to Criminal Term for further proceedings consistent herewith. Defendant’s confession was obtained after a felony complaint had been filed and an arrest warrant issued. At that point defendant’s right to counsel attached. Accordingly, under the circumstances herein, defendant’s purported waiver of counsel in the absence of counsel was invalid and, as the People concede with commendable candor, his confession should have been suppressed (see People v Samuels, 49 NY2d 218). We have reviewed defendant’s remaining points relating to the validity of his predicate felony conviction rendered September 15, 1970 (i.e., defendant entered a plea of guilty to the crime of robbery in the second degree under Indictment No. 2696/69), and find them to be without merit (see CPL 10.20, subd 1, par [a]; 170.20; People v Phillips, 48 NY2d 1011, affg 66 AD2d 696). Titone, J. P., Gibbons, Hargett and O’Connor, JJ., concur.