Appeal from a judgment of the County Court of Otsego County, rendered May 21, 1979, upon a verdict convicting defendant *1014of the crime of murder in the second degree. In an indictment defendant was charged with the crime of murder in the second degree in violation of subdivision 2 of section 125.25 of the Penal Law based on allegations that he caused the death of a two- and one-half-year-old baby by means of beating the baby with his hands and with a stick. Following a jury trial, defendant was convicted of said crime and sentence was imposed. This appeal ensued. It appears from the record that an accusatory instrument was filed and as a result thereof a warrant of arrest was issued directing the arrest of defendant. Defendant was thereafter arrested and given his Miranda warnings. He was then questioned in the absence of counsel and made a full confession. A pretrial motion was made by defendant to suppress the confession. The court denied the motion, concluding that defendant was given his Miranda warnings, that he understood his rights and that he voluntarily and knowingly waived his rights in making the oral and written admissions. Defendant contends that the confession should have been suppressed due to the fact that it was obtained in the absence of counsel after an accusatory instrument was filed and that he could not waive his right to counsel in the absence of counsel. The Court of Appeals has recently addressed this precise issue and concluded that once a felony complaint is filed a defendant may not waive his right to counsel in the absence of counsel (People v Samuels, 49 NY2d 218). Consequently, defendant’s confession was improperly admitted into evidence at trial and should have been suppressed. The trial court’s failure to suppress defendant’s confession may not, in the present case, be characterized a harmless error. The judgment, therefore, must be reversed and a new trial granted. Having so concluded, we need not now consider defendant’s remaining contentions. Judgment reversed, on the law, and a new trial granted. Sweeney, J. P., Main and Mikoll, JJ., concur; Herlihy, J., concurs in the result in a separate memorandum; Staley, Jr., J., dissents and votes to affirm in a memorandum.