I dissent. The common thread, indeed the important factor, in the right-to-counsel cases is the police awareness that the suspect has invoked the right to and sought the services of counsel (see People v *918Skinner, 52 NY2d 24; People v Marrero, 51 NY2d 56; People v Cunningham, 49 NY2d 203) or that the suspect is, in fact, represented by counsel on other charges (see People v Rogers, 48 NY2d 167). The police did not have this knowledge in this case. The only thing that they knew was that defendant had made a telephone call to an attorney. Unlike People v Johnson (79 AD2d 201, application for lv to app granted 53 NY2d 843) the defendant never expressed to the police his unwillingness to talk to them without first consulting an attorney. This case stands in the same posture as People v Bartolomeo (53 NY2d 225). The Coqrt of Appeals, in Bartolomeo, imposed a duty of inquiry on the police because the police knew that the defendant had a pending charge, thereby giving them reason to believe that the defendant was presently represented by counsel. The Court of Appeals held in Bartolomeo that if the police fail to make the inquiry and the defendant is, in fact, represented by an attorney on a pending charge, his subsequent waiver of rights is void. Here, the police, with knowledge that defendant had contacted an attorney, made the appropriate inquiry and were told by the defendant that he was not represented by counsel. Under these circumstances, the police acted properly and are free to seek a waiver of rights from the defendant without an attorney being present. (Appeal from judgment of Oneida County Court, Darrigrand, J. — arson, third degree.) Present — Dillon, P. J., Hancock, Jr., Callahan, Doerr and Schnepp, JJ.