(dissenting). The hearing court, after observing the witness and listening to his testimony over two days, made the following findings of fact: “Silverman then informed him that he had a right to an attorney and if he did *776not have an attorney, one could be provided for him free of charge. To this the defendant responded, quote, T will use a Legal Aid.’, unquote. Silverman then informed the defendant that he had the right to an attorney to be present during the questioning. And the defendant acknowledged that he understood that. Silverman then queried the defendant with respect to the crime now before the court.” These findings have support in and are consistent with the record. There appears to be no basis to disturb them. Issues of credibility are ordinarily for the trier of fact. (See concurring mem of Justice Lupiano, citing People v Samuels, 68 AD2d 663, 666, and People v Garafolo, 44 AD2d 86, 88.) Having determined that the defendant, in response to the Miranda warnings, stated “I will use a Legal Aid” and then, nonetheless, proceeded to respond to the officer’s questioning without further insistence on an attorney, we must next determine whether his words were an unequivocal request for counsel; whether, in the context in which they were given, they were a mere statement, in futuro, that “If I need a lawyer” he would then use Legal Aid; or whether the words are ambiguous as to defendant’s intent. Of course, if the words are what they seem — a request for Legal Aid as counsel — any subsequent statement should have been suppressed. If they exhibit a clear intent to defer a request for counsel to some future time, “If I need a lawyer”, they may form no ground for suppression. However, if those words, in this context, are interpreted to be ambiguous, on the question of defendant’s intent, upon whom lies the burden of clarification? Is it the defendant’s burden to make any request for counsel clear, unequivocal and free from doubt? In People v Woodard (64 AD2d 517, 518), the defendant, in response to the Miranda warnings, stated, “May I have Legal Aid?” He was importuned and did waive his right to counsel. The court stated (p 518), “the People have a heavy burden when they attempt to prove a defendant has voluntarily and intelligently waived that right. (Miranda v Arizona, 384 US 436, 475; People v Ramos, 40 NY2d 610, 618.) That burden was not carried here. Defendant’s request for ‘legal aid’ was clear and categoric * * * His statement should have been suppressed even if his request for an attorney be considered an ambiguous one, as the People urge, for whatever abiguity was created existed because of the prosecutor’s failure to clearly and effectively explain to defendant * * * what the right to counsel consisted of. And if the prosecutor was in doubt as whether defendant had indeed relinquished his right to counsel it was incumbent upon him not to play fast and loose with that precious right but rather to insure it was protected.” An analogous situation arose in People v Ramos (40 NY2d 610), where the People contended that an attorney’s statement concerning his representation of the defendant was ambiguous. The court held that any doubt as to the attorney’s representation of the defendant gave rise to a burden on the prosecution to insure to the defendant the protection of the right to counsel. It was not an opportunity to circumvent that right or to place upon the defendant an affirmative burden to show the representation. The Court of Appeals stated (at pp 617-618): “If, in fact, the prosecution was in doubt as to whether an attorney had entered the proceeding, the burden should rest squarely on it to insure that the defendant’s right to be represented by counsel be protected. The ambiguity of the lawyer’s statement * * * cannot be seized by the prosecution as a license to play fast and loose with this precious right * * * Nor can we agree with the prosecutor that the defendant has an affirmative burden to point out to the prosecution that an attorney has entered the proceedings on his behalf. To hold otherwise would violate our prior holdings and seriously undermine this constitutionally guaranteed right.” In Miranda v Arizona (384 US 436, 471-473), the Supreme Court stated “we hold that an individual held for interrogation must be clearly informed that he has the right to consult with *777a lawyer and to have the lawyer with him during interrogation * * * this warning is an absolute prerequisite to interrogation * * * only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.” (Emphasis added.) In view of the ambiguity here, the officer’s repetition, by rote, of the next prong of the Miranda warnings, without more, does not satisfy the People’s burden. In this case, the officer ignored the defendant’s comment, continuing past it, thus circumventing the right to counsel. The obligation should rest upon the prosecution to clarify an apparent ambiguity in a prospective defendant’s response to the Miranda warnings. Was it not the responsibility of the officer to advise the defendant at that point that, if it was his request, assigned counsel, or “Legal Aid”, would be provided before the questioning proceeded? In this instance, the people did not meet their burden of proving, beyond a reasonable doubt, a voluntary and knowing waiver (People v Huntley, 15 NY2d 72, 78). The majority maintains that because of the doctrine of the “law of the case”, we may not consider the question of the admissibility of defendant’s statements, on the ground that we implicitly ruled on that question upon defendant’s appeal from his conviction after the first jury trial (People v Taylor, 68 AD2d 864). That decision set forth, as the ground of its reversal, the error committed by permitting the in-court identification of defendant. It never referred to the issue before us. Thus, we are unable to determine from a reading of the decision whether the court went beyond the identification to reach the admissibility of the statement, and it is arguable whether the consideration of that issue was implicit. While it may generally be the better view that, since the issue was before the court on the first appeal, it is implicit that the court considered it, nevertheless the doctrine of “law of the case” would not now be a bar to our review of that same issue. The Court of Appeals has stated that, “we cannot hold it to have been error that the Appellate Division chose, after dismissing defendants’ first appeal * * * to entertain consideration of the same issue on the second appeal. Every court retains a continuing jurisdiction generally to reconsider any prior intermediate determination it has made.” (Aridas v Casería, 41 NY2d 1059,1061.) Our own court has held, “[e]ven when a second appeal is before the bench which has made previous determinations, the doctrine is less than inflexible. ‘In the absence of statute the phrase, law of the case, as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided, not a limit on their power.’ (Messinger v Anderson, 225 US 436, 444.)” (People v Palumbo, 79 AD2d 518, 519, affd 53 NY2d 894.) We should consider the issue of whether there was a waiver of defendant’s right to counsel and, upon such consideration, reverse the conviction and remand for further proceedings.