In a virtually unbroken array of cases, the Court of Appeals has expanded the right to counsel to the point now that a defendant may not be *174questioned in the absence of his attorney if the police are aware that he is represented by counsel in an unrelated pending criminal matter (People v Mann, 60 NY2d 792; People v Miller, 54 NY2d 616). If the police have knowledge of an undetermined charge against a defendant, they are obliged to inquire whether he had representation in that proceeding; if they fail to do so, they are chargeable with the information such inquiry would have disclosed (People v Fuschino, 59 NY2d 91; People v Smith, 54 NY2d 954; People v Bartolomeo, 53 NY2d 225). Here, the arresting officer searched the Binghamton police file catalog on April 19, 1982, the date defendant was apprehended, and discovered that the latter had been arrested in 1981. Lacking a reasonable and well-founded belief that this earlier charge had been dismissed (People v Fuschino, supra, pp 98-99), the police were required to ascertain whether defendant had counsel in the prior proceeding; had they done so, they undoubtedly would have learned that he was represented at the time and therefore could not effectively waive his right to counsel unless his attorney was present.
Relying on meticulous application of the statutory definitions of “criminal proceeding” (CPL 1.20, subd 18), “criminal action” (CPL 1.20, subd 16) and “criminal courts” (CPL 10.10, subd 1), the People maintain and the majority agrees that the above-stated rule is inapplicable to counsel engaged in appealing prior proceedings because an appeal, apparently even one unquestionably directed at establishing a defendant’s innocence or vindicating his rights, is not part of a pending prosecution. Although technically inviting, a principal shortcoming of this argument is that it is based on the wholly unacceptable premise that an appeal is not a critical stage of a criminal proceeding at which the fundamental right to an attorney is assured by our State Constitution.
Moreover, conditioning the right to counsel on whether a criminal proceeding, as defined in the Criminal Procedure Law, has been concluded misperceives the spirit of the existing case law, the underlying rationale of which is that the presence of the accused’s counsel serves to equalize the positions of the accused and the sovereign, thus rendering the sometimes coercive force of the State less overwhelming (People v Rogers, 48 NY2d 167, 173). While, as the *175People observe, this disparity may well be appreciably minimized at the appellate level, nevertheless, a defendant’s need of counsel for the matters on which he was being interrogated remained unabated.
Furthermore, as an attorney is no less duty bound at the appellate level than at the trial level to protect his client’s interests, there is no reason to assume he would choose to represent his client on one charge only to abandon him on a subsequent unrelated one. Indeed, because it is the attorney’s role, not the State’s, to determine whether a particular matter touches upon the extant charge (People v Rogers, supra), he will undoubtedly be much concerned with how the later charge bears on the earlier, as counsel obviously was here, where the bargained-for sentence ultimately arrived at specifically depended on the disposition of the then pending appeal of the burglary conviction.
Needless to say, the fear that defendants may abuse their right to counsel by filing groundless appeals and uselessly prolonging the appellate process is a real one. However, in analogous circumstances, the courts have confronted attempts to subvert the criminal justice process and dealt with them more than readily (see People v Marshall, 98 AD2d 452; People v Baldi, 96 AD2d 212; People v Jacobs, 115 Misc 2d 954).
We are, of course, constrained to heed the rulings of the Court of Appeals. The thrust of those rulings as we comprehend them leads us to conclude that since simple inquiry by the police of defendant could have revealed that he had counsel in an unrelated criminal appeal, which was actively being pursued, his oral and written admissions were obtained in contravention of his constitutionally guaranteed right to counsel. Accordingly, defendant’s conviction should be reversed and his guilty plea vacated, the motion to suppress granted and the matter remitted to the County Court of Broome County for further proceedings not inconsistent herewith.
Weiss and Harvey, JJ., concur with Casey, J. P.; Yesawich, Jr., and Levine, JJ., dissent and vote to reverse in an opinion by Yesawich, Jr., J.
Judgments affirmed.