defendant invoked his right to counsel and had not been advised by his fellow officers or Ely that defendant wanted to confer with counsel, testified that in the squad room the defendant initiated a conversation with him, by asking whether Inness remembered him. Inness responded in the negative. After a pause, the defendant asked Inness whether he was the police officer who had spoken to him and the codefendant the night before. Inness testified at the hearing that he said to defendant “I told you if you didn’t get off the street you would get in trouble that evening * * * Look what happened”, at which point the defendant said that “he really didn’t mean to shoot the guy, but it was an accident”. Inness then asked the defendant whether he had had a gun at the time that Inness was talking to him and the codefendant the night before, and the defendant responded in the affirmative and then went on to say that he and the codefendant intended to rob the victim, but that the “gun went off accidentally”. Thereafter, Inness repeated the conversation which he had just had with the defendant to Detectives Sullivan and McMillan and told the detectives that the defendant wished to make a statement. The defendant then made a statement to Assistant District Attorney Ely which was taped. The trial court denied in its entirety the defendant’s motion to suppress the statements made to Police Officer Inness and Assistant District Attorney Ely. Thereafter, the defendant pleaded guilty to manslaughter in the first degree. It is well established that once a suspect in custody requests the assistance of counsel, he may not be questioned in the absence of an attorney
(People v Harris, 57 NY2d 335 , cert den_US_, 103 S Ct 1448 ;
People v Cunningham, 49 NY2d 203 ;
People v Samuels, 49 NY2d 218 ). Any subsequent waiver of the right to counsel outside the presence of counsel cannot be given legal effect and any statements made by the defendant must be suppressed unless they are in fact spontaneous
(People v Carmine A., 53 NY2d 816 ;
People v Lucas, 53 NY2d 678 ;
People v Cunningham, supra). The trial court accordingly erred in denying the defendant’s motion to suppress the statements he made tó Assistant District Attorney Ely and the statements he made to Officer Inness after the officer asked him whether he had had a gun the night before. Those statements were made outside the presence of counsel after the defendant had invoked his right to counsel and were not spontaneous. However, the statements defendant made to Officer Inness prior to the time that Inness asked the defendant whether he had had a gun were, in our view, spontaneous, and the defendant’s motion to suppress as to them was properly denied (see
People v Rivers, 56 NY2d 476 ;
People v Lynes, 49 NY2d 286 ;
People v Kaye, 25 NY2d 139 ). With regard, to those statements, it must be noted that defendant initiated the conversation with Officer Inness by asking the officer whether he remembered him, and, when the defendant was not satisfied with Inness’ negative response, he persisted in attempting to jog Inness’ memory. It was then that Inness recalled the conversation, repeated its substance, and then as a natural response to the situation of the defendant’s being arrested for murder, stated “I told you if you didn’t get off the street you would get in trouble that evening * * * Look what happened”. We find that Officer Inness’ response to defendant’s question was not intended to induce the defendant to make the statement which he made
(.People v Lynes, supra; cf.
People v Carmine A., supra; People v Lucas, supra). Contrary to the People’s contention, the trial court’s erroneous denial of the motion to suppress certain of the defendant’s statements cannot be deemed harmless error inasmuch as it cannot be determined whether the trial court’s erroneous ruling contributed to the defendant’s decision to plead guilty
(People v Purdy, 53 NY2d 806 ;
People v Grant, 45 NY2d 366 ). As indicated by the Court of Appeals in
People v Grant (supra, pp 379-380 ), “when a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a