I am in agreement with the result reached in the court’s memorandum for the reasons there set forth. One aspect of the case seems to me, however, to merit separate discussion. I refer to that rule, important to the decision in this case, which regards as an assertion of the right to counsel a refusal to answer questions after the administration of Miranda warnings, where those warnings are followed by a question to the person in custody as to whether he was "willing to answer questions without an attorney present”. (People v Carmine A., 53 NY2d 816, 818; People v Dean, 47 NY2d 967; People v Clark, 45 NY2d 432.)
Although it is, and should be, done rarely, I think there are circumstances in which ah intermediate appellate Judge, without any disrespect to the Court of Appeals, may appropriately invite that court to reconsider the correctness of a rule it enunciated. The above-stated rule seems to me to represent such a situation.
A distinction has now been firmly established in the law of *477this State between the consequences that follow the request of a person in custody for counsel and those that follow the assertion by such a person of his right to remain silent. As noted in the court’s memorandum opinion, the uncounseled waiver of a constitutional right by a suspect in custody who has requested the assistance of counsel "will not be deemed voluntary if it is made after the right to counsel has been invoked” (People v Cunningham, 49 NY2d 203, 205). Where counsel has been requested, the only statements by such a person that may be admitted in evidence against him are spontaneous statements as that term was defined in the authorities cited in the court’s memorandum opinion.
Where, however, a person in custody has refused to answer questions after receiving the Miranda warnings, thereby asserting his right to silence, his right to remain silent must be "scrupulously honored” (Miranda v Arizona, 384 US 436, 479; Michigan v Mosely, 423 US 96, 103-104; People v Ferro, 63 NY2d 316). As elaborated by the Court of Appeals in the leading case on this issue: "He may not within a short period thereafter and without a fresh set of warnings be importuned to speak about the same suspected crime [citations omitted], but a statement volunteered or spontaneously made will not be suppressible unless it is about the same crime and results from express questioning or its functional equivalent under circumstances which do not include fresh warnings and do not scrupulously honor the suspect’s right to cut off questioning [citations omitted]”. (People v Ferro, supra, at 322.)
In this case, we are confronted with an exception to the usual rule that treats a refusal to answer, after the receipt of Miranda warnings, as the assertion of the right to counsel. The exception that has been carved out holds that a refusal to answer amounts to a request for counsel, where, prior to that refusal and after giving the required Miranda warnings, the interrogator asked the defendant if he was "willing to answer questions without an attorney present”.
With great respect, I am unable to perceive a persuasive reason for giving that special meaning to the explicit use of the words "without an attorney present”. What becomes immediately clear from a study of the Miranda warnings is that the words "without an attorney present” simply make explicit that which, in the absence of the words, is clearly implicit and manifestly intended and understood. Thus, in the Miranda warnings proper, as read to this defendant from the form, the following was included: "You have the right to consult with an attorney before speaking to the police and *478have an attorney present during any questioning now or in the future. Do you understand? He said yes. If you cannot afford an attorney, one will be provided for you without cost. Do you understand? He said yes. If you do not have an attorney available, you have the right to remain silent until you have the opportunity to consult with one. Do you understand? He said yes.”
Assume that the warnings were then followed by the detective asking the defendant in the more usual way: "Now that I advised you of your rights, are you willing to answer questions”, omitting the words "without an attorney present”. It is reasonable to suppose that the defendant would not have understood that he was being asked a question with precisely the same meaning as the question actually asked, which included the words "without an attorney present”?
In short, it seems to me that a negative response to the Miranda warnings by a suspect in custody always means that he does not wish to answer questions without an attorney present, whether or not that phrase, adapted from one of the Miranda warnings, is explicitly included in the last question put to the suspect. On the basis of this analysis, a question that would logically follow is whether or not a negative response to the Miranda warnings should always be interpreted as an assertion of the right to counsel. Such an approach would, of course, overthrow the principle established by the Supreme Court in Michigan v Mosley (423 US 96, supra), and one that has been consistently followed by the Court of Appeals.
Although there is undeniably an element of verbal ambiguity in the meaning of a negative response to the Miranda warnings, it seems to me that in terms of the reality of the situation, such a response is more realistically evaluated as the assertion of the right to silence than as a request for counsel. Particularly in light of the careful delineation by the Court of Appeals in People v Ferro (supra) of the rights of defendants who have asserted a claim to silence, I see no reason to fear that such an approach would impermissibly diminish the legitimate constitutional rights of such defendants. On the other hand, it would have the significant advantage of providing some flexibility to law enforcement officials in situations in which changing developments in the course of the investigation make it appropriate to ascertain if the defendant has changed his mind.
What seems to me particularly disturbing about the rule *479that has been established is that it imposes an investigative limitation on police officers as the result of the use of a formulation, not required by law, that clearly represents an effort to be as fair as possible to the suspect in custody. The inevitable effect of the rule is to discourage law enforcement officials from using what is in fact preferable language in terms of the spirit of the Miranda warnings, and discourages them from so doing without, in my opinion, an adequate basis.
So far as I am able to determine, the rule has its genesis in People v Clark (45 NY2d 432, supra), which was decided at a time when the Court of Appeals had not explicitly determined what, if any, distinction should be made between the consequences of a request for counsel and the assertion of the right to silence, and in a case in which it made no difference to the result which principle was found to have been violated. Accordingly, no occasion was then presented to the court for a careful study of the question.
In any event, I believe that the rule merits another look by the Court of Appeals.