In my view, the testimony elicited at the hearing conducted pursuant to our remittal establishes that defendant was neither in custody at the time he confessed to the brutal murder of his stepmother, nor was he represented by an attorney. Accordingly, People v Rogers (48 NY2d 167) is inapplicable and defendant’s confession was properly admitted into evidence.
Edward Purser, the Acting City Court Judge, testified that on June 6, 1976 defendant was arraigned before him on a drug charge. Purser set bail at $5,000. The following afternoon, defendant was brought to the office of Judge Purser who testified under oath at the hearing that he released the defendant in his own recognizance.
Although defendant was given a document explaining the procedure to follow in contacting the Public Defender’s office, defendant conceded that he never called that office. Additionally, John Ryan, an attorney, unequivocally testified that he did not at any time represent defendant on the drug charge and that he had so advised defendant. Gary Allen, a State Police investigator who was with defendant at the times in *185issue, testified that defendant never requested an attorney and that defendant never told him that he had an attorney. Likewise, Sergeant Dickey of the State Police testified that while being questioned on the homicide, defendant never requested an attorney and never indicated that he had one. Finally, when cross-examined at the. Huntley hearing as to why he signed a statement which stated that he did not want an attorney, defendant replied that "I figured I wasn’t going to need a lawyer”. Contrary to the statement in our previous decision, therefore, it is now clear that attorney Ryan had come to the arraignment for the sole purpose of advising defendant that he would not represent him on any charge.
Next, I conclude that Rogers, which requires suppression of statements given only by "a defendant in custody” (48 NY2d 167, 169), is also inapplicable for the reason that defendant was not in custody at the time he confessed. It is undisputed that Judge Purser released defendant on his own recognizance, which obviously constituted a meaningful interruption of custody. The mere fact that the State Police, in the proper exercise of their responsibilities, desired to talk to defendant on the homicide charge, does not compel the conclusion that defendant remained in custody. After defendant was released on his own recognizance, defendant was asked if he would accompany the State Police to the State Police station. Investigator Allen testified that the defendant said "sure” and that defendant was "co-operative”. Moreover, Allen testified that defendant was "free to come and go” and that he, Allen, did not consider that defendant was in custody. It, therefore, seems clear to me that following release on his own recognizance, defendant voluntarily went to the State Police station. Finally, since defendant was not in custody, the principles recently set forth in People v Samuels (49 NY2d 218) and People v Cunningham (49 NY2d 203) are inapplicable. For the above reasons, and since defendant waived his Miranda rights after being properly advised of them prior to his interrogation on the homicide charge, his confession was properly admitted into evidence.
I, therefore, respectfully dissent.