(concurring). I concur in the result reached by the majority.
Were it not for the disposition at the Appellate Division, the error with respect to denial of the right to counsel would not have been preserved for our review. (People v Tutt, 38 NY2d 1011.) It is only because the Appellate Division had jurisdiction to consider the contention, even though the error was not raised at the suppression hearing, and because the Appellate Division predicated its reversal on this error, that defendant may urge the correctness of the Appellate Division’s determi*866nation of the question of law involved in support of an affirmance.