I respectfully dissent. I cannot agree with the majority that Supreme Court properly refused to suppress DNA evidence obtained from defendant because, as defendant correctly contends, that evidence was obtained in violation of his right to counsel. The record of the suppression hearing establishes that, when that evidence was obtained, defendant was in custody on unrelated charges and was represented by counsel on those charges. Consequently, he could not be interrogated on any matter, “ ‘whether related or unrelated to the subject of the representation’ ” (People v Burdo, 91 NY2d 146, 149 [1997]). The investigating detective was aware that defendant was represented by counsel, but nevertheless devised a scheme to obtain DNA evidence from him in counsel’s absence. The detective was acquainted with defendant, knew that he was a smoker and did not have access to cigarettes while incarcerated, and would likely request a cigarette from the detective. As in People v Ferro (63 NY2d 316, 322 [1984], cert denied 472 US 1007 [1985]), the detective engaged in conduct that was “ ‘reasonably likely to elicit an incriminating response’ ” from defendant (see People v Kollar, 305 AD2d 295, 297 [2003], appeal dismissed 1 NY3d 591 [2004]), and that was designed to circumvent defendant’s right to counsel.
“The indelible right to counsel arises from the provision of the State Constitution that guarantees due process of law, the right to effective assistance of counsel and the privilege against compulsory self-incrimination” (People v Grice, 100 NY2d 318, 320 [2003]). Further, under the State Constitution, a waiver of rights may be obtained from a criminal suspect who is actually and known by the police to be represented by counsel only in the presence of counsel (see People v Grimaldi, 52 NY2d 611, 616 [1981]). “Underlying the rule is the concept that a criminal defendant confronted by the awesome prosecutorial machinery of the State is entitled, at a bare minimum, to the advice of counsel when he is considering surrender of his valuable legal rights” (id.). The advice of counsel, moreover, is “no less important if the police seek a relinquishment of defendant’s constitutional right to be secure against unreasonable searches *1705and seizures than if they seek a waiver of his privilege against self[-]incrimination” (People v Johnson, 48 NY2d 565, 569 [1979]; see People v Esposito, 68 NY2d 961, 962 [1986]).
Consistent with the right to be secure against unreasonable searches and seizures, the People may obtain nontestimonial evidence such as a DNA sample from a suspect pursuant to a court order, “subject to constitutional limitation” (CPL 240.40 [2] [b]; see Matter of Abe A., 56 NY2d 288, 291 [1982]; People v Afrika, 13 AD3d 1218, 1219 [2004], lv denied 4 NY3d 827 [2005]). Alternatively, the People may obtain a DNA sample with a suspect’s consent, provided that the consent “was voluntary and not the product of coercion” (People v Dail, 69 AD3d 873, 874 [2010]). Here, however, defendant was actually and known by the police to be represented by counsel, and thus it would have been constitutionally impermissible for the detective to seek defendant’s consent to provide a DNA sample before defendant had been permitted access to counsel (see People v Loomis, 255 AD2d 916 [1998], lv denied 92 NY2d 1051 [1999]). In my view, it was no less constitutionally impermissible to obtain such a sample from defendant without his knowledge or consent, i.e., by way of trickery, before he had been permitted access to counsel. I therefore would reverse the judgment, grant that part of defendant’s motion seeking to suppress the DNA evidence obtained from defendant while he was in custody, and grant a new trial. Present—Scudder, P.J., Fahey, Lindley and Green, JJ.