People v. Tindal

— Case held, decision reserved and matter remitted to Monroe Supreme Court for hearing, in accordance with the following memorandum: On this appeal from a judgment of conviction for rape in the first degree, defendant contends that he was deprived of his right to counsel because he was interrogated by the police in the absence of an attorney who was representing him on a pending charge (see People v Smith, 54 NY2d 954 ; People v Bartolomeo, 53 NY2d 225 ; People v Rogers, 48 NY2d 167 ). While acknowledging that this issue was not raised in the trial court, defendant correctly observes that his trial took place prior to Rogers (supra) and that the Court of Appeals has held that the Rogers rule should be applied to cases still on appellate review (see People v Albro, 52 NY2d 619 , 624; People v Bell, 50 NY2d 869 , 871). Because this issue was not before the suppression court (see People v Tindal, 69 AD2d 58 ), the record is insufficient for us to determine whether defendant was represented by an attorney on a pending charge, and if he was, whether the police knew or should have known of such representation (see People v Servidio, 54 NY2d 951 ). We thus remit the matter for a hearing to develop a record on this issue (see People v Baldi, 54 NY2d 137 ,152; People v Johnson, 89 AD2d 812 ). We have examined the other issues raised by defendant and find them to be lacking in merit. (Appeal from judgment of Supreme Court, Monroe County, Kennedy, J. —■ rape, first degree.) Present — Hancock, Jr., J. P., Callahan, Doerr, Denman and Boomer, JJ.