People v. Barnes , 80 A.D.2d 507 ( 1981 )

Appeal from judgment, Supreme Court, New York County, rendered July 27, 1978, convicting defendant on his plea of guilty of manslaughter in the first degree and sentencing him to an indeterminate sentence of 0 to 7 years, held in abeyance, and matter remanded for further hearing on defendant’s motion to suppress statements. Although not raised by defendant in his motion to suppress incriminating statements attributed to him, or in the hearing itself, the record clearly discloses that these statements were made in the absence of counsel after the defendant had been arrested on an arrest warrant. In People v Samuels (49 NY2d 218), the Court of Appeals squarely held that any statements secured from a defendant in the absence of counsel after the commencement of a criminal proceeding violated the right to counsel and must be excluded. The Court of Appeals also reaffirmed in Samuels the rule (p 221) “that a claim that a defendant was deprived of his right to counsel during police questioning may be raised for the first time on appeal.” The District Attorney contends that defendant’s failure to raise the issue before the hearing court deprived the People of an opportunity to establish that the statements in question were made spontaneously and not in response to questioning. We remand for a further evidentiary hearing addressed to that issue. Concur — Fein, J. P., Sandler, Ross, Markewich and Lupiano, JJ.