Reversible error was committed by the court below when it denied the motion of the defendant, Baker, to suppress his admissions which were made by him after the departure of his counsel, who had surrendered him to police, at the same time stating to the police that the defendant was not to be questioned. The record is clear that the questioning, which resulted in the admissions alleged to have been made by this defendant, was conducted after the departure from the station house of the defendant’s counsel, who was led to believe that the defendant was to be booked and brought to court. This procedure, which was engaged in by the authorities, was in direct violation of the constitutional rights of the defendant. (Escobedo v. Illinois, 378 U. S. 478; People v. Donovan, 13 N Y 2d 148; People v. Gunner, 15 N Y 2d 226; People v. Friedlander, 16 N Y 2d 248; Miranda v. Arizona, 384 U. S. 436.)
In People v. Gunner (supra, p. 232) the court said: “ once a retained attorney contacts the police officer in charge and informs him * * * that he represents the suspect and does not want any statements taken from him, the police are precluded from thereafter questioning him or, if they do, from using against him any statements which he made in the absence of counsel.” (Emphasis supplied.)
The attempt on the part of the majority to spell out a waiver by the defendant of the presence of his counsel and a complete willingness on his part to answer the questions of the authorities is completely unsupported by the record.
In the Miranda case (supra, p. 475), the court said: ‘ ‘ a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. [Citing case.] This court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst * * * and we re-assert these standards as applied to in-custody interrogation. * * *
“ An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or .simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, 369 U. S. 506, 516 * * * is applicable here:
‘ ‘ ‘ Presuming waiver from a silent record is impermissible. The record must .show, or there must be an allegation and *28evidence which show, that an accused was offered counsel but intelligently and understandably rejected the offer. Anything less is not a waiver ’.”
Even a most cursory reading of the record convincingly demonstrates that the standards necessary to be observed to spell out a waiver were not complied with and it is, therefore, difficult to understand how the majority arrives at its conclusion that this defendant waived his constitutional rights.
While the evidence, apart from the confession, is adequate to support the verdict of guilty against this defendant, it, nevertheless, would not justify an affirmance by this court, for, as was stated in People v. Donovan (supra, p. 153): “ not knowing what credit and weight the jury gave to the * * * confession, we cannot say whether the jury would have returned a verdict of guilt if that improperly received statement had been excluded.”
I dissent and vote to reverse the judgment of conviction against Wallace Baker and to order a new trial.
Rabin and McNally, JJ., concur with Steuer, J.; Capozzoli, J., dissents in opinion in which Eager, J.P. concurs.
Judgment of conviction affirmed.