Defendant, while in the custody of the Ontario County Sheriff on another charge, was questioned regarding two local burglaries committed several months previously. The chief county detective testified at the Huntley hearing that at about 11:30 a.m. on February 6, 1968 he asked the defendant about these two burglaries and the defendant ‘ ‘ did not want to discuss it with me ”. Later that same day, at about 4:00 p.m., he questioned the defendant again about these crimes in the Sheriff’s office and after giving the defendant his Miranda warnings the defendant asked .to speak to his attorney who was thereupon called and came to the Sheriff’s office and went with the defendant into the deputies’ room where he and the defendant had a private conversation. Before the attorney left, the chief detective had a conversation with him and then, he (the chief detective) states: “ I went into the room where Mr. Pellicano was and I asked him if he had discussed .this matter with his attorney and he stated that he had. I asked if he had talked over his rights and so forth and he said he had. I asked him what *174he had decided. He said that he had decided that he wanted to talk to me ’ ’. The defendant then gave the chief detective an oral statement regarding the details of the two burglaries. Following this testimony at the Huntley hearing, the trial court found that defendant’s oral statement was voluntarily made at the trial. On the same testimony the jury, after a charge respeeting the voluntariness of the defendant’s statement, returned a verdict of guilty on the larceny and burglary charges against the defendant from which he appeals.
The defendant’s privilege against self incrimination must be protected when the defendant is subjected to police interrogation " while in custody at the station (Miranda v. Arizona, 384 U. S. 436), As the Court of Appeals stated in People v. Arthur (22 N Y 2d 325, 329), “ Once an attorney enters the proceeding, the police may not question the defendant in the absence of counsel unless there is an affirmative waiver, in the presence of the attorney, of the defendant’s right to counsel [citation omitted]. There is no requirement that the attorney or the defendant request the police to respect this right of the defendant ”. Such right applies, however, only when the police have taken an accused into custody (People v. Vella, 21 N Y 2d 249) because “ 'the criminal proceeding commences with formal custody and, if an in-custody defendant in fact is .represented by counsel, and tbe police know it, they may not question him in the absence of counsel ” (People v. McKie, 25 N Y 2d 19, 26). The majority conclude that these plainly stated constitutional protections against self incrimination while in custody do not mean what they so clearly say, i.e., that there may not be a waiver unless “ in the presence of counsel ” and an in-custody defendant who the police know is represented by counsel may not be questioned in counsel’s absence.
The Fifth Amendment privilege does not bar voluntary statements (People v. Kaye, 25 N Y 2d 139; People v. Torres, 21 N Y 2d 49). Thus, where the oral statement given is “ spontaneous ’ ’, it is admissible against the defendant even though he was represented by counsel at the time. In People v. Kaye (supra) defendant’s blurted-out statement of guilt to the police in the ear on the way to the station, after he had spent two days in a room with a strangled 13-year-old victiip, was held spontaneous and admissible. In People v. McKie (supra) a statement made by the defendant during the course of a heated altercation in the street with the police investigating the murder of an old lady in which he said, ‘ ‘ Sure, I did it, but you guys can’t prove it ” (p. 23) was similarly held spontaneous and admissible.
*175People v. Robles (27 N Y 2d 155, cert. den. 401 U. S. 945), relied on by the majority, was also a “ spontaneous ” admission not a result of custodial interrogation. In that case the defendant blurted out the fact that he had “ killed those two girls ” in response to the inquiry, from a detective who had previously known him, ‘ ‘ Eick, did you ever think it would wind up like this ” (People v. Robles, supra, p. 158). The oral statement made by the defendant in the instant case, while in custody, in response to the plainly intended police interrogation cannot be construed as a “ spontaneous” blurted-out or voluntary statement by defendant as it so clearly was in Kaye, McKie, and Robles.
The broad protection afforded citizens and spelled out in Miranda v. Arizona (supra, p. 444) has not been abrogated by the Court of Appeals in their recognition of “ spontaneous ” confessions where the facts clearly indicate such is the case.
Insofar as the majority view this as a “ waiver ” of the right to remain silent and the right to counsel, the facts do not prove this beyond a reasonable doubt. This defendant refused on two separate occasions to talk with the detective and it was only after his attorney left the building that the police officer obtained the defendant’s confession. The majority find “ a reasonable inference ” that the attorney had told the detective that the defendant was willing to talk in the absence of counsel. Significant, in this connection, are the detective’s notes which so indicate and upon which the majority make their inference. However, while in this same attorney’s presence at the Huntley hearing and at the trial, and after the attorney had been handed these notes, the detective did notiso testify. Thus, there is as strong an inference that such a conversation did not actually occur as indicated in the notes. The Supreme Court has stated ‘ ‘ that ‘ courts indulge every reasonable presumption against waiver ’ of fundamental constitutional rights and * * * ‘do not presume acquiescence in the loss of fundamental rights ’ ” (Johnson v. Zerbst, 304 U. S. 458, 464).
I conclude, therefore, that this oral statement was involuntary as a matter of law and that its admission at the trial requires that the judgment of conviction be reversed and a new trial ordered.
Marsh, Witmer and Moule, JJ., concur with Del Vecchio, J. P.; Cardamone, J., dissents and votes to reverse the judgment and grant a new trial in an opinion.
Judgment affirmed.