People v. Hutchinson

59 N.Y.2d 923 (1983)

The People of the State of New York, Respondent, v. Zafarin Hutchinson, Appellant.

Court of Appeals of the State of New York.

Argued June 3, 1983.

Decided June 28, 1983.

Valerie Hriciga and William E. Hellerstein for appellant.

Mario Merola, District Attorney (Jeremy Gutman and Peter D. Coddington of counsel), for respondent.

Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur.

*924MEMORANDUM.

The order of the Appellate Division should be reversed, appellant's conviction vacated, his statements suppressed, and the case remitted to Supreme Court for further proceedings.

At the pretrial hearing appellant explicitly grounded his motion to suppress statements made by him to Police Officer Silva at his residence and later at the transit police district office, inter alia, on the failure of the officer giving appellant his constitutional preinterrogation warning to have included advice that appellant was entitled to the assistance of counsel during his questioning by the officer, an aspect of the warnings to which appellant concededly was entitled. Although the suppression court denied the motion to suppress based on a determination that the warnings given were legally sufficient, examination of the transcript of the hearing discloses the absence of any proof *925 that the component of the warnings specifically identified by appellant had been given. Accordingly, it was error to have denied the motion to suppress the statements made.

With respect to appellant's request that his plea of guilty to a violation of probation, which he asserts was predicated on the robbery conviction we are now vacating, also be vacated, we note that this question is not before us on appeal from the Appellate Division's order affirming the judgment of conviction. Accordingly, our failure to grant the relief requested should be accorded no significance in any proceedings appellant may hereafter pursue concerning the violation of probation.

Order reversed, conviction vacated, defendant's statements suppressed and case remitted to Supreme Court, Bronx County, for further proceedings on the indictment in a memorandum.