We dissent and would affirm the judgment of conviction; there is no precedent for the majority position. The majority bestows the right to counsel beyond the present requirements of established principles. While we recognize that once a defendant invokes the right to counsel, police may no longer interrogate in the absence of counsel and a subsequent waiver of the rights outside the presence of counsel cannot be given legal effect (People v Cunningham, 49 NY2d 203; People v Byers, 71 AD2d 77); such is not the case here. Nothing which transpired in this record can convert a mere reference in a tele- ' phone conversation to a personal request when confronted with police interrogation. Defendant was at all times com*204pletely free in her own household and without any restraints to pursue any action or activities she desired. There was no request by her to a police officer nor any denial on their part of any right to this defendant.
Upon our review of the record, defendant’s noncustodial telephone discussion with the police that she was “sick and tired of [the police] bothering her and that she wanted to call a lawyer” was not an unequivocal assertion that she was requesting the assistance of counsel (see People v Cunningham, supra). Defendant’s reference to an attorney in her telephone conversation with the police in the noncoercive atmosphere and security of her house is obscure and at most manifested a desire on defendant’s part to consult with an attorney (see People v Hardy, 73 AD2d 830, 831). This is not sufficient for defendant’s “indelible” right to counsel to attach (People v Byers, supra).
Nothing in the Court of Appeals recent holding in People v Skinner (52 NY2d 24) compels the result reached in the majority opinion. In that case, although the police questioning was noncustodial, it was done with full awareness that defendant was represented by counsel specifically on the matter under investigation and after defendant’s attorney had instructed the police not to question defendant in his absence.
The majority opinion distorts the principle and imposes an undue burden and restriction upon proper investigation of criminal activity within established constitutional criteria.
Simons and Hancock, Jr., JJ., concur with Dillon, P. J.; Callahan and Moule, JJ., dissent and vote to affirm in an opinion by Callahan, J.
Judgment reversed on the law and facts and a new trial granted.