Over the last several decades, we have described the New York right to counsel that we have created as “pragmatic,” “simple,” “grounded on ‘common sense and fairness’,” “workable” and “comprehensible.” The majority quotes all these descriptions today and adds that the law is “eminently straightforward” (see majority op at 381, 382, 383 [and the authorities there cited]).
I think we protest too much. In reality, our right to counsel jurisprudence is so complicated that it is almost incomprehensible, and it regularly produces unjust results. This case is an example. The majority, struggling to harmonize our cases—an attempt which, as I will try to show, does not succeed—is led to the conclusion that Detective Mattei infringed defendant’s right to a lawyer. But it is hard to imagine any case in which a prisoner’s waiver of that right could be more free of coercion, deception or any other form of unfairness. The majority finds the waiver bad because Mattei should have realized that a Pennsylvania lawyer was representing defendant on a drug charge completely unrelated to the murder Mattei was investigating; in common sense, the Pennsylvania case should have no bearing at all on the validity of defendant’s waiver.
*389The majority’s attempt to reconcile the cases fails because no satisfactory reconciliation is possible. I therefore propose that we simplify our law by limiting People v Rogers (48 NY2d 167 [1979]) to its facts, and returning to the old-time religion of People v Taylor (27 NY2d 327 [1971]). Taylor, unlike Rogers and more recent cases, did establish a simple, workable rule: that a suspect’s relationship with a lawyer in one case does not bar police questioning of him about another, unrelated case.
The facts of Rogers, the case in which we abandoned the Taylor rule, were these: Defendant was arrested as a suspect in a robbery. After he had been questioned about that robbery for two hours, a lawyer entered the case on his behalf and asked the police to stop questioning him. They did not stop, but changed the subject: They questioned him—for four more hours, in which he was manacled to a chair—about “unrelated activities in which he had not participated” (48 NY2d at 170). After this, the defendant, for reasons unclear in the Rogers opinion, “uttered an inculpatory statement” about the original crime (id.).
It is easy to see why we did not like what happened in Rogers, and I would have no quarrel with a rule excluding a defendant’s statement on facts like those; perhaps a rule providing that, where a defendant is represented by counsel on a particular matter, any statement about that matter that is elicited by police questioning in counsel’s absence is inadmissible. But in Rogers, unfortunately, we went much further, saying that “once a defendant is represented by an attorney, the police may not elicit from him any statements, except those necessary for processing or his physical needs” (48 NY2d at 173). Under this rule, statements about a new case in which defendant never had a lawyer can be excluded.
This has led—and is still leading, more than 30 years later—to much trouble and confusion. In People v Bartolomeo (53 NY2d 225, 229 [1981]) we held that
“[w]here to the knowledge of the interrogating officer a suspect being questioned had been arrested by the same law enforcement agency nine days previously on an unrelated charge, statements obtained in consequence of the interrogation must be. suppressed if in fact the suspect is represented by an attorney with respect to the unrelated charge even though the fact of such representation is unknown to the officer.”
*390Nine years later, we decided that we had gone too far, and overruled Bartolomeo in People v Bing (76 NY2d 331 [1990]). We explained in Bing:
“The right to assistance of counsel is one of the important means of protection against police harassment afforded individuals. But the right recognized must rest on some principled basis which justifies its social cost. Bartolomeo has no such basis. It rests on a fictional attorney-client relationship derived from a prior charge and premised on the belief that a lawyer would not refuse to aid his newly charged client. The decision to retain counsel rests with the client, however, not the lawyer and by hypothesis Bartolomeo defendants have waived their right to counsel and chosen not to hire a lawyer to represent them on the new unrelated charges. Indeed, they have done so after receiving the benefit of legal advice and after at least one prior experience dealing with the authorities.” (Id. at 348-349 [citation omitted].)
The above language (and much else in the Bing opinion) reads like an argument for overruling not only Bartolomeo but the broad rule of Rogers. In the typical case to which the Rogers rule applies—this one, for example—the suspect’s assumed representation by counsel on a second, unrelated case is “a fictional attorney-client relationship derived from a prior charge.” In this and similar cases, it is no less true than in Bartolomeo that “defendants have waived their right to counsel and chosen not to hire a lawyer to represent them on the new unrelated charges”—and, indeed, that they “have done so after receiving the benefit of legal advice and after at least one prior experience dealing with the authorities.”
Despite this, Bing did not reject the rule of Rogers—the Bing majority opinion ends, surprisingly, with a declaration that Rogers is still good law:
“We emphasize in closing that although Rogers and Bartolomeo are frequently linked in legal literature and Rogers was the only case cited to support the new rule adopted in Bartolomeo, the two holdings are quite different. In People v Rogers, the right to counsel had been invoked on the charges on which defendant was taken into custody and he and his *391counsel clearly asserted it. To protect his rights, we established a bright-line rule preventing the police from questioning defendant about those charges or any other charges. In People v Bartolomeo, however, defendant was taken into custody for questioning on a new, unrelated charge. He was not represented on that charge and freely waived his right to counsel. Since the right to counsel is personal and may be waived by a defendant, the court had to create an indelible right, a right that defendant could not waive in the absence of counsel, to justify suppression of the voluntary statement. It did so by implying a derivative right arising from the prior pending charges. We find the Bartolomeo rule unworkable, and therefore overrule it, but our decision today should not be understood as retreating from the stated holding of Rogers.” (Id. at 350 [citations omitted].)
It has never been entirely clear what the Bing court thought distinguished Rogers and Bartolomeo: What made Rogers right and Bartolomeo wrong? A possible distinction is that Bartolomeo went beyond Rogers by prohibiting questioning not only where the police actually knew of a prior representation, but where they could readily have discovered it. In Bartolomeo itself, both the majority and the dissent emphasized that point. The words “even though the fact of such representation is unknown to the officer” are part of the Bartolomeo majority’s statement of its holding (quoted above), while the dissent stressed “that the police knew only that defendant had been previously arrested and did not know defendant had counsel on those earlier charges” (53 NY2d at 236 [Wachtler, J., dissenting]). Three years after the Bing decision, in People v West (81 NY2d 370 [1993]), we said that this was indeed what distinguished Rogers and Bartolomeo. According to West, the “Bartolomeo right was problematic” because “[u]nlike Rogers, the Bartolomeo right could attach without police awareness of the unrelated representation” (id. at 378).
The majority today criticizes the idea of giving dispositive weight to the distinction between a police officer’s actual knowledge and that which a reasonable officer would think “highly likely” (majority op at 383). The criticism is cogent. I agree that in this case, Detective Mattei, if he thought about the question at all, would probably have assumed that defendant had counsel *392on the pending Pennsylvania charge, and it seems arbitrary to make the case turn on whether that assumption ripened into actual knowledge. But for me, the point of greater importance is that there is no reason why either the assumption or the knowledge should have prevented Mattel from asking questions about a matter having nothing to do with the Pennsylvania case.
If actual knowledge does not suffice to distinguish Rogers and Bartolomeo (and thus to justify Bing’s overruling of one case but not the other), what is the distinguishing feature? Today’s majority suggests that it is the occasion for the suspect’s custody. Rogers, when questioned by the police, was in custody on the charge on which a lawyer represented him; Bartolomeo was in custody on a later charge, on which he was unrepresented. Indeed, the language I have already quoted from Bing points out that in Rogers “the right to counsel had been invoked on the charges on which defendant was taken into custody.” And in People v Steward (88 NY2d 496, 499 [1996]) we seemed to embrace the “custody” rationale, saying that the distinguishing feature of the Bartolomeo right was that “it did not hinge on or relate to the matter for which a defendant was then in custody and being questioned.”
But the “custody” explanation of Bing’s distinction between Rogers and Bartolomeo cannot be the correct one, for a simple reason: It fails to account for the result in Bing itself, and in People v Cawley, decided with Bing. Bing was arrested in New York on an Ohio warrant, at a time when he had counsel on the Ohio charge. While in custody on that charge in New York, he was questioned about and admitted involvement in an unrelated burglary. Cawley was arrested for robbery, jumped bail and was rearrested on a bench warrant. Thus, he was in custody on the original robbery charge when he “gave inculpatory statements about new, unrelated criminal conduct” (76 NY2d at 336). If custody was the basis for the line that Bing drew between Rogers and Bartolomeo, why were Bing’s and Cawley’s statements not suppressed? My predecessor on this Court asked essentially this question 14 years ago, and received no answer (see People v Burdo, 91 NY2d 146, 154-155 [1997, Wesley, J., dissenting]).
Today’s majority attempts to answer the question, but its answer does not work. It says that Bing and Cawley were not “in custody for the offense for which an attorney had entered” but “were under arrest for being fugitives from justice” and “were not represented by counsel on that matter” (majority op *393at 385). But being a fugitive from justice is not a separate “matter” from the offense that caused the fugitive to flee. Bing and Cawley fled to avoid facing, were arrested on, and when questioned were in custody on charges for which they had lawyers. The majority offers no reason why their status as former fugitives should have impaired their right to counsel. Indeed, the Bing court rejected the argument that “a defendant who absconds and never contacts his lawyer . . . has terminated the attorney-client relationship” (76 NY2d at 346).
The facts of Bing are relevant to our case in another way: In Bing, as here, the only existing attorney-client relationship was in a case from another state. It does not make sense to suppress a confession in a New York case solely because of a relationship that is governed by the laws of Ohio or Pennsylvania; those states can decide for themselves how the relationship can best be protected. It was this that persuaded then-Judge Kaye, who was opposed to overruling Bartolomeo, to concur in the result in Bing. She acknowledged “the absurdity of extending Bartolomeo to [the Bing] facts” (76 NY2d at 356 [concurring in Bing and dissenting in Cawley]).
Bing was identical to this case in all material respects: a defendant in custody on an out-of-state charge, interrogated by New York officers about an unrelated New York crime. Though the Bing court was divided 4-3 on the question of overruling Bartolomeo, all seven Judges agreed that Bing’s right to counsel had not been violated. Since the majority here accepts Bing as good law, it is hard to understand how it reaches the opposite conclusion.
I conclude that the effort to find consistency in our cases in this area is a fruitless one. I therefore return to a more basic point: In common sense, Detective Mattel did nothing wrong and this defendant’s right to a lawyer was not interfered with in any way. He did not have a lawyer in the case Detective Mattel was talking to him about, and he validly waived his right to counsel in that case. The fact that he had a lawyer in an unrelated Pennsylvania case should be of no significance.
We said in People v Steward: “Bing unequivocally eliminates any right to counsel derived solely from a defendant’s representation in a prior unrelated proceeding” (88 NY2d at 500). Today’s majority echoes this comment—“the derivative right no longer exists” (majority op at 384). Steward said, and today’s majority repeats, that the right recognized in Rogers is not *394“derivative,” but I do not see how this can be so if the word derivative has any intelligible meaning (see West, 81 NY2d at 378 [“(l)ike Rogers, (the Bartolomeo) right was derivative”]). If this defendant’s right in this New York case did not derive from his Pennsylvania representation, where did it come from?
For these reasons, I think we should accept, at long last, the logical implication of Bing: The rule of Rogers, as well as that of Bartolomeo, is unjustifiable. We should return to the Taylor rule. I would therefore hold that the courts below committed no error in admitting defendant’s statements to Detective Mattei into evidence. I would not reach the question of harmless error.
Chief Judge Lippman and Judges Ciparick and Jones concur with Judge Graffeo; Judge Smith concurs in result in a separate opinion in which Judges Read and Pigott concur.
Order affirmed.