People v. Greenwood

81 A.D.2d 1038, 441 N.Y.S.2d 439, 1981 N.Y. App. Div. LEXIS 11804

Opinion

— Judgment unanimously reversed, defendant’s motion to suppress granted and matter remitted to Supreme Court, Onondaga County, for further proceedings on the indictment. Memorandum: Our review of the record discloses that defendant’s confession was obtained in the absence of counsel after he had been arrested pursuant to an arrest warrant. It now must be suppressed (People v Samuels, 49 NY2d 218). Although defendant was arrested on October 26, 1978, People v Samuels (supra), decided January 15, 1980, must be given retroactive application and the deprivation of effective assistance of counsel issue may be raised for the first time on appeal (People v Cullen, 50 NY2d 168; People v Bryant, 79 AD2d 867; People v Parker, 78 AD2d 580). The District Attorney demonstrates commendable candor in acknowledging that the interests of justice compel suppression irrespective of defendant’s failure to raise this issue. (Appeal from judgment of Onondaga Supreme Court — sodomy, first degree.) Present — Cardamone, J.P., Callahan, Doerr, Denman and Moule, JJ.