I am in total agreement with the opinion of my colleague Justice Smith and would like only to add a few remarks.
It is a well-known fact that the public prosecutor’s office is granted broad powers and resources with which to carry out its functions of investigating and prosecuting crimes. However, in carrying out that office’s equally important role as advocate of justice and servant of the law, it is equally well known that those powers can only be used in ways which foster and encourage public confidence in our government and the system of law upon which it is founded. Accordingly, the prosecutor is charged with the duties of fair dealing with the accused and candor to the courts and must be ever vigilant to see that justice is done. (People v Pelchat, 62 NY2d 97, 105; People v Pugh, 107 AD2d 521, 532; People v Baker, 99 AD2d 656.) With regard to an individual’s privilege against self-incrimination and his or her right to counsel, the Court of Appeals has declared that those officers representing the State must accord the "highest degree of respect” to those fundamental rights. (People v Rogers, 48 NY2d 167, 170.)
In collaboration with the police detectives assigned to investigate the homicide of Olav Kjonstad, the prosecutors involved in this case violated the public trust by deliberately circumventing the constitutional law of this State as set forth in the decisions of the Court of Appeals defining the right against self-incrimination and the right to counsel. The prosecutor’s office misled the court in its reasons for dismissing the shoplifting case against defendant and dealt unfairly with the defendant by depriving him of that element which "serves to equalize the positions of the accused and sovereign, [and] *326mitigat[es] the coercive influence of the State” (People v Rogers, supra, 48 NY2d, at 173), that is, his attorney.
It may be technically correct to argue that the holdings of People v Rogers (supra) and People v Bartolomeo (53 NY2d 225) are inapplicable, because at the time of interrogation defendant was no longer represented by counsel on a pending unrelated case. However, if we are to maintain confidence in our system of law, it is absolutely imperative that we not ignore how it came to be that defendant was deprived of representation by counsel so as to have his situation fall outside the ambit of the constitutional rules announced in People v Rogers (supra) and People v Bartolomeo (supra).
As the hearing court found (and its determinations of the facts must be accorded great weight), the prosecutor’s office dismissed defendant’s misdemeanor shoplifting case specifically to enable the police, who were in court waiting anxiously for the dismissal to take place, to question defendant as a suspect in a murder case, outside the presence of defendant’s counsel on the now dismissed misdemeanor case.* The prosecutor’s office was, to say the least, less than candid with the court before which the dismissal was entered, when it represented that the People were moving to dismiss "based upon the broad range of factors.”
CPL 170.40 (1) permits the People to move for a dismissal of an information or misdemeanor complaint, in the interest of justice, if there exists "some compelling factor, consideration or circumstance clearly demonstrating that conviction or prosecution of the defendant * * * would constitute or result in injustice.” In this case it is the dismissal which resulted in injustice: injustice to the defendant, who was immediately thereafter whisked away to an interrogation without counsel, and an injustice to our system of law in the total lack of respect rendered to the fundamental right to counsel, as defined by the decisions of this State’s highest court. This was a misuse of the prosecutor’s discretionary powers to seek a dismissal in the interest of justice, and such a misuse of powers simply cannot be condoned.
I cannot accept the majority’s position that the prosecutor’s reasons, even bad faith reasons, for dismissing a case are immaterial. Neither do I accept its interpretation of defendant’s argument as a right not to have a case dismissed. The *327cases cited in the majority’s opinion concerning the prosecutor’s "broad discretion over who, what and when to prosecute” (People ex rel. Doe v Beaudoin, 102 AD2d 359, 365) pertain to the prosecutor’s exclusive decision-making powers to investigate and formulate charges and initiate prosecutorial proceedings. However, once the initial decision to prosecute has been made and the matter is presented to the court for resolution, the judicial decision-making function also comes into play, and the rights and duties of three parties are now involved: the defense, the prosecution and the court.
The defendant’s position is merely that proceedings in court should be conducted with candor and with respect for a defendant’s rights. Instead, the prosecutor overstepped the bounds of fairness and violated the integrity of the proceeding at which he moved to dismiss the misdemeanor case when in bad faith he hid from the defendant and the court his decision to have the pending charges dismissed solely to evade the constitutional rules of Rogers (supra) and Bartolomeo (supra). In fact, to achieve the result intended, eliminating the presence of defendant’s counsel in order to interrogate defendant alone, the prosecutor had to conceal from both defendant and the court his reason for dismissing the case, as it is unlikely that had counsel known defendant was wanted for interrogation he would have abandoned his client at that critical point. It is disturbing, to say the least, that this court places its imprimatur on such an act of dishonesty.
Finally, any attempt to compare this case with People v Colwell (65 NY2d 883) is untenable, as the facts of that case are clearly inapposite to those herein. In Colwell, the normal course of the criminal trial process rendered the case against Colwell no longer pending. Here, it was the underhanded, deliberate design of the prosecutor’s office to have defendant’s case dismissed in order to circumvent the Rogers/Bartolomeo rulings which rendered the case no longer pending.
For all these reasons, I dissent.
Sandler, J. P., and Kassal, J., concur with Rosenberger, J.; Smith, J., dissents in an opinion; Carro, J., concurs in the dissenting opinion of Justice Smith and dissents separately in an opinion.
Judgment, Supreme Court, New York County, rendered on September 5,1984, affirmed.
The court also found that defendant subsequently underwent a custodial interrogation.