The opinion
Hawkins, J. (dissenting).
I dissent and vote to affirm the judgment of conviction.
The majority’s opinion distinguishes and, hence, holds inapplicable People v Stanley ( 15 NY2d 30 ), People v Taylor ( 27 NY2d 327, 331-332 ) and the most recent ruling in People v Coleman ( 43 NY2d 222 ). The salient distinguishing factor, however, appears to be that the defendant’s questioning was done by the same team of police officers rather than by separate teams or by officers of different jurisdictions. In *183 essence, the majority finds such facts to be "significantly distinguishable from those in Stanely, Coleman and Taylor In so doing, virtual immunity would be accorded to a defendant involved in unrelated crimes by his mere arrest for a profoundly lesser crime, an extension of Miranda which the Court of Appeals has consistently denied. I do not believe that Stanley and the other cases are to be so redefined, extended or attenuated.
In People v Stanley (supra) incriminating statements made by the defendant, while under a Federal indictment and released on bail, to New York State police officers prior to arraignment or indictment by New York for grand larceny, were admissible although uttered in the absence of counsel.
As noted in the majority opinion herein, the assault charge upon which appellant was initially interrogated was unquestionably an unrelated crime. It involved an assault upon a young girl—not the victim of the homicide—on the previous day, to wit, March 13, 1972. The murder for which defendant was convicted occurred on August 3, 1971.
The majority alludes to defendant having a "mild degree of mental retardation”. However, there is nothing in the record to indicate that the appellant lacked such requisite intelligence and comprehension as would render his admission and confessions inadmissible on such ground.
People v Coleman ( 43 NY2d 222 , supra) does not support the majority’s position. There the defendant was subjected to a lineup after being brought from prison, where he was being held on "an unrelated charge.” At the outset, the Court of Appeals phrased the issue it had to review as follows (p 224): "We are asked to pass on the question of whether a defendant, incarcerated pending trial on a charge for which he was represented by counsel, may waive, in the absence of an attorney, his right to counsel at a lineup, held in an unrelated investigation, in which his presence was secured pursuant to a court order of removal.”
After reviewing the leading cases on the question, both Federal and State, that court held (p 226): "Today we reach this question and decide that the right to counsel may be waived notwithstanding the absence of counsel whom a defendant had retained with respect to a wholly unrelated charge.”
The Court of Appeals there also commented upon the anomalous consequences of immunizing a defendant under such *184 circumstances (pp 226-227): "The fact that defendant was represented by counsel in a proceeding unrelated to charges under investigation is not sufficient to invoke the rule that, once a lawyer has entered a criminal proceeding representing a defendant on a charge under investigation, the defendant may not waive his right to counsel in the absence of the attorney. The representation by counsel must be in the same or related investigation or proceeding. Certainly, the presence of counsel in an unrelated proceeding does not 'immunize the defendant from normal, good faith police investigation’ of other criminal activity. (People v Clark, 41 NY2d 612 , 615.) Since no lawyer representing the defendant had entered the criminal proceedings involving the investigation of the robbery complaint at the time the lineup order was obtained, the defendant could waive his right to counsel.”
In People v Coleman (supra) suppression was granted, but this was the result of the equivocal nature of the defendant’s alleged assent—he "apparently nodded his head affirmatively, a reaction which the police officer assumed to indicate that the defendant understood his rights”—coupled with the defendant’s refusal to sign a statement acknowledging that he had been informed of his right to counsel.
In sum, I believe that People v Taylor ( 27 NY2d 327 , supra) and the most recent determination in People v Coleman ( 43 NY2d 222 , supra) are controlling and dispositive of this appeal.
Damiani, J. P., and Titone, J., concur with Suozzi, J.; Hawkins, J., dissents and votes to affirm the judgment, with an opinion, in which Cohalan, J., concurs.
Judgment of the County Court, Dutchess County, rendered August 16, 1973, reversed, on the law, motion to suppress granted as to those statements made by defendant on March 15 and March 22, 1972, and new trial ordered.