People v. Herman , 85 A.D.2d 927 ( 1981 )

Judgment unanimously reversed, plea vacated and matter remitted to Onondaga County Court for further proceedings on the indictment. Memorandum: Defendant could not waive his rights, in the absence of counsel, once he had been taken into custody pursuant to an arrest warrant: therefore, his oral and written statements must be suppressed (People v Samuels, 49 NY2d 218). Although defendant was arrested prior to the decision in. People v Samuels (supra), it must be given retroactive application and the issue of deprivation of effective assistance of counsel may be raised for the first time on appeal (People v Pepper, 53 NY2d 213; People v Greenwood, 81 AD2d 1038). Since it cannot be said with certainty that the failure to suppress the statements played no part in defendant’s decision to plead guilty, the plea must be vacated (People v Harris, 48 NY2d 208; People v Whaley, 78 AD2d 588). (Appeal from judgment of Onondaga County Court, Cunningham, J. — attempted burglary, second degree.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Moule, JJ.