This is an appeal from a judgment of the County Court, Rensselaer County, convicting the appellant of the crime of manslaughter in the first degree.
Appellant stands convicted of the crime of manslaughter in the first degree in the death of one Maxwell Slick. He claims here that a certain statement made by him to law-enforcement officials should have been excluded from evidence at his trial.
The record reveals the following facts. Slick’s death was discovered at approximately 8:00 p.m. on July 23, 1963. At 1:00 a.m. on July 24 appellant, among others whose names appeared in an address book belonging to the deceased, was taken to the Troy Central Police Station for questioning. This questioning lasted until 3:00 a.m., when appellant was released. During the early afternoon of July 24, however, appellant was again taken into custody for further questioning. At this point appellant’s mother called the law office of Mr. Prank Tate, Jr., who had previously represented appellant. Mr. Tate was out of the office but his law clerk, Lionel Sacks, called the police station and after informing the police that Mr. Tate represented appellant inquired as to why appellant had been taken into custody. Chief Detective Rokjer informed Sacks that appellant was just undergoing ‘ ‘ routine questioning ’ ’ and that appellant was not in need of the services of an attorney at that time. Shortly thereafter (the whole questioning period took only 30 minutes) appellant made the statement involved and was “ booked ”.
Admittedly there was here no request for access by an attorney and denial by the police (People v. Donovan, 13 N Y 2d 148; People v. Failla, 14 N Y 2d 178), no unheeded demand by counsel that statements not be taken in his absence (People v. Gunner, 15 N Y 2d 226), and no request by appellant for counsel (People v. Noble, 9 N Y 2d 571). Nevertheless, if we correctly interpret People v. Sanchez (15 N Y 2d 387) we must find that ■the statement involved should have been excluded. In Sanchez *9(supra) Fuld, J., writing for the court (p. 389) stated: “ These facts bring the case squarely within our decisions in People v. Donovan (13 N Y 2d 148), People v. Failla (14 N Y 2d 178) and People v. Gunner (15 N Y 2d 226), and it matters not, insofar as application of the rule therein stated is concerned, whether the defendant, when taken into custody, was regarded by the police as ‘ accused ‘ suspect ’ or ‘ witness The significant or operative fact in such cases is that the defendant confessed or otherwise incriminated himself while being interrogated by the police in the absence of counsel after he had requested the aid of an attorney or one retained to represent him had contacted the police.” (Emphasis added.) (See, also, People v. Gunner, supra, p. 232.)
Concededly Sacks did not, like the attorney in Sanches, express a desire to see and speak with his client prior to his making the statement, but at the same time the police were clearly aware prior to the taking of the statement that appellant was represented by counsel and yet neither informed the attorney that the “ routine questioning” had changed to the point where appellant was about to make a statement nor informed appellant that an attorney had called and was available to represent him if he so desired. The inaccurate and misleading representations that “ there was no need of any lawyer ” and that there was “ nothing wrong ’ ’ were, whether or not so designed, effective to prevent a demand that questioning cease or that counsel be permitted to confer with the defendant. A new trial must therefore be ordered at which any statements made after Sacks communicated with the police are to be excluded.
The judgment of conviction should be reversed, on the law and the facts, and a new trial ordered.