Angel Claudio appeals from a judgment of the United States District Court for the Eastern District of New York, Edward R. Korman, Judge, denying a petition for a writ of habeas corpus. The district court determined that Claudio’s Sixth Amendment right to counsel was not violated by his attorney’s failure to raise an ineffective assistance of counsel claim under the New York Constitution during a pre-trial appeal to the New York Court of Appeals. For the reasons set forth below, we reverse, with directions. There was a reasonable probability that the neglected claim would have succeeded on appeal and counsel’s failure to raise the claim fell outside the range of reasonably competent assistance.
BACKGROUND
On May 15, 1980, at approximately 4:15 a.m., Steven Zweikert was shot to death during a robbery as he returned home from his high school prom. Four days later, as a result of an anonymous tip, police investigating the incident went to Claudio’s home and asked that he accompany them to the police station for questioning. Claudio, who was sixteen years old, complied after his stepmother agreed to accompany him. At the station, Claudio told the police that he had been on his front stoop the night of the incident and had gone to bed around midnight. Claudio allowed himself to be photographed and was then taken home by the police.
On May 21,1980, Claudio, and his cousin, David Erasquine, consulted the phone book to find legal help. They called the firm of Heller and Heller and left a message. Mark Heller returned their call and agreed to meet with them the next day in Brooklyn Criminal Court, where Heller had some business. As agreed, Heller met with Claudio and Erasquine and talked about Claudio’s situation. Heller requested and received one dollar as a token retainer and explained that his fee would be approximately $5,000.
Heller then drove Claudio and his cousin to the Queens County District Attorney’s Office in order for Claudio to surrender. Although there is conflicting testimony as to the circumstances surrounding this decision, Justice Kenneth Browne of the New York Supreme Court, Queens County, found Claudio’s testimony to be more credible than Heller’s. The findings were that Heller told Claudio to surrender and did not explain the seriousness of the charges that Claudio might face or his available defenses. The judge believed Claudio’s testimony that he was told by Heller that, if he surrendered, he might receive probation and serve no jail time at all.
*800At the District Attorney’s office, Heller, having left Claudio and Erasquine in a downstairs hallway, met with District Attorney Santucci and was told that there would be no plea bargain even if Claudio confessed. Heller did not share this information with Claudio but simply told him that he was still negotiating. After Heller’s meeting with Santucci, Heller was approached by Assistant District Attorney Del Vecchio, who requested that Claudio give a statement. Heller, at first, refused, saying that they should “[j]ust book him and arraign him.” Del Vecchio replied, “I want to talk to him, we can’t book him and arraign him on nothing.” Indeed, Santucci, Del Vecchio, and the other assistant district attorneys testified that without a confession, they had lacked sufficient evidence to charge Claudio with the Zweikert murder.
On Heller’s recommendation, Claudio eventually gave his statement, confessing to the Zweikert murder. Heller actively participated in the questioning and in the District Attorney’s press conference that was held afterward.
Claudio was indicted for the crimes of murder in the second degree, attempted robbery in the first degree, and criminal possession of a weapon in the second degree. Following the indictment, the court appointed Albert A. Gaudelli to represent Claudio. Justice Browne held the pre-trial evidentiary hearing alluded to above and granted Claudio’s motion to suppress his confession on the ground that his Sixth Amendment right to effective assistance of counsel had been violated by attorney Heller’s conduct. The prosecution appealed the court’s decision on the pre-trial motion, pursuant to New York Criminal Procedural Law § 450.20(8), and the Appellate Division reversed. People v. Claudio, 85 A.D.2d 245, 447 N.Y.S.2d 972 (2d Dept.1982). The Appellate Division determined that Claudio’s right to counsel under the Sixth Amendment of the United States Constitution had not attached because adversarial judicial criminal proceedings had not commenced, citing United States v. Zazzara, 626 F.2d 135 (9th Cir.1980) and Brown v. United States, 551 F.2d 619 (5th Cir.1977). Claudio, 85 A.D.2d at 252, 447 N.Y.S.2d at 977.
Of particular importance to this case, the Appellate Division also addressed, sua sponte, the question whether Claudio’s right to counsel had been violated under art. I, § 6 of the New York Constitution.1 The court found that Claudio’s right to counsel had attached according to a line of New York cases that “grew out of the need to protect suspects from prearraignment and preindictment police abuse.” Claudio, 85 A.D.2d at 254, 447 N.Y.S.2d at 979. One of these cases, People v. Skinner, 52 N.Y.2d 24, 436 N.Y.S.2d 207, 417 N.E.2d 501 (1980), served as the primary basis for the Claudio court’s finding. According to the Claudio court, Skinner stood for the proposition that “a person not yet in custody may not be questioned outside of the presence of his attorney about a matter under investigation when the interrogators know that he has retained an attorney to represent him in relation to the very subject being investigated.” Claudio, 85 A.D.2d at 255, 447 N.Y.S.2d at 979. The Claudio court applied the Skinner rule to the facts of this case and determined that it was “clear that Claudio’s right to counsel under [the New York] State Constitution had attached prior to his confession.” Id. at 256, 447 N.Y.S.2d at 979.
However, the court decided that Claudio's constitutional rights had not been violated since the state constitutional right to counsel before the initiation of formal proceedings did not include a right to effective counsel. In reaching this conclusion, the Claudio court focussed exclusively on whether the police and prosecutors had a duty to determine if Claudio had received competent legal help before they questioned him. The court reasoned that it would be impractical and improper to require a law enforcement officer to judge *801the competency of legal advice, and, therefore, that Claudio did not have a meritorious claim under the New York Constitution. Claudio, 85 A.D.2d at 260, 447 N.Y.S.2d at 981.
On appeal, the Court of Appeals affirmed the Appellate Division’s decision that Claudio’s Sixth Amendment right to counsel had not attached prior to his confession. People v. Claudio, 59 N.Y.2d 556, 466 N.Y.S.2d 271, 453 N.E.2d 500 (1983). Claudio’s counsel did not raise the Article 1, § 6 New York right to counsel claim on appeal even though it was the subject of lengthy discussion by the Appellate Division and had been argued and briefed by the state. As a result, the Court of Appeals did not reach the issue.2
Following the appeal, Claudio was tried before a jury, convicted on all the charges, and sentenced to a total of 35 years to life imprisonment. The conviction was affirmed by the Appellate Division, but the sentence was modified to 25 years to life. People v. Claudio, 130 A.D.2d 759, 515 N.Y.S.2d 845 (2d Dept.1987). Leave to appeal to the Court of Appeals was denied. People v. Claudio, 70 N.Y.2d 873, 523 N.Y.S.2d 501, 518 N.E.2d 12 (1987).
On October 13, 1989, Claudio filed a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of New York. The petition raised four issues, the first three of which are set out here as they are the same issues Claudio raises on appeal. First, Claudio contended that his Sixth Amendment right to counsel was violated when Attorney Gaudelli failed to raise the Article 1, § 6 ineffective assistance of counsel claim during his pre-trial appeal to the New York Court of Appeals. Second, Claudio asserted that Heller’s conduct constituted a violation of his Sixth Amendment right to counsel. Third, Claudio argued that his Sixth Amendment right to compulsory process was violated by the trial court’s decision not to allow him to examine District Attorney Santucci during trial.
The district court denied Claudio’s petition on April 3, 1992 and issued a corrected memorandum and order granting a certificate of probable cause on April 30, 1992. Claudio v. Scully, 791 F.Supp. 985 (E.D.N.Y.1992). First, the court determined that Claudio had not been prejudiced by his counsel’s failure to raise the Article 1, § 6 claim because there was no reasonable probability that the argument would have succeeded. Second, the court found that Claudio had no Sixth Amendment claim based on Heller’s advice prior to his confession because the right to counsel under the United States Constitution had not attached. Finally, the court decided that the refusal to allow Claudio to call Santucci as a witness was not a violation of the Compulsory Process Clause because Santucci’s testimony would have been repetitive.
On this appeal, we reverse the district court on Claudio’s first claim and affirm the district court’s findings on the second and third claim.
DISCUSSION
The Sixth Amendment to the United States Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel.” The right to counsel protected by the Sixth Amendment “is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). On appeal, Claudio argues that his right to effective assistance of counsel was violated on two separate occasions: first, by Heller’s ineffective representation prior to his confession and, second, by Gau*802delli’s ineffective pre-trial representation before the Court of Appeals.
As a threshold matter, we must determine whether Claudio had a constitutional right to counsel at the relevant times during which he was represented by Heller and Gaudelli.3 A defendant cannot prevail on an ineffective assistance of counsel claim when the constitutional right to counsel has not attached. Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301-02, 71 L.Ed.2d 475 (1982). Claudio’s ineffective assistance of counsel claim concerning Heller’s representation fails to meet this threshold requirement. The Sixth Amendment right to counsel “attaches only at or after the time that adversary judicial proceedings have been initiated____” Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881, 32 L.Ed.2d 411 (1972). Despite the clear consensus among every court that has reviewed this case that Heller’s conduct was egregious, formal proceedings had not commenced when Claudio confessed and, this claim, therefore, must be rejected.
Unlike Claudio’s claim concerning Heller’s pre-confession representation, the claim based on Gaudelli's representation does meet this threshold requirement. Clearly, formal proceedings had commenced against Claudio at the time of the pre-trial appeal. Our inquiry, however, does not end there. Although formal proceedings are a necessary condition for the attachment of the Sixth Amendment right to counsel, they are not sufficient. A defendant is not constitutionally entitled to the assistance of counsel in all pre-trial circumstances but only those considered “critical stages” in the proceedings. See United States v. Wade, 388 U.S. 218, 227, 87 S.Ct. 1926-1932, 18 L.Ed.2d 1149 (1967); Coleman v. Alabama, 399 U.S. 1, 7, 90 S.Ct. 1999, 2002, 26 L.Ed.2d 387 (1970); see also Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 158, 7 L.Ed.2d 114 (196 1) (“critical stage” defined as a proceeding which may affect the whole trial).
Claudio’s pre-trial appeal to the Court of Appeals was unquestionably a critical stage. District Attorney Santucci and the assistant district attorneys involved in this case have all testified that Claudio’s confession was essential to the prosecution’s case. In fact, under § 450.50 of the New York Criminal Procedure Law, the prosecution had to certify that the confession was critical to their case and that the case could not proceed without it before they could make a pre-trial appeal of Justice Browne’s suppression order.4
The Supreme Court in Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974), provides additional support for our determination that Claudio’s right to counsel had attached at the time of his pre-trial appeal. The Ross Court compared the trial stage to the post-conviction appellate process, and decided not to extend the right to counsel to post-conviction discretionary appeals. The Court wrote that:
it is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State’s prosecutor but rather to overturn a finding of guilt made by a *803judge or jury below. The defendant needs an attorney on appeal not as a shield to protect him against being “haled into court” by the State and stripped of his presumption of innocence, but rather as a sword to upset the prior determination of guilt.
Id. at 610-11, 94 S.Ct. at 2443-44. Here, Claudio needed Gaudelli’s assistance as a shield, not a sword. The prosecution initiated the appellate process at a time when Claudio’s presumption of innocence remained intact.
Having determined that Claudio’s right to counsel had attached at the time of his pre-trial appeal, we must still resolve whether Gaudelli's representation was constitutionally defective. A defendant is denied his federal constitutional right to the effective assistance of counsel when his attorney’s conduct falls outside the wide range of “professionally competent assistance” and when there is a “reasonable probability” that, but for counsel’s inadequate representation, the result of the proceeding would have been different.5 Strickland v. Washington, 466 U.S. 668, 690, 694, 104 S.Ct. 2052, 2065, 2068, 80 L.Ed.2d 674 (1984). Although Strickland addressed the constitutional standard for ineffective assistance of counsel in the trial counsel context, our Circuit has also adopted the Strickland two-prong test in assessing the effectiveness of appellate counsel. Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir.1990). We begin first with the issue upon which the district court denied Claudio’s claim, the issue whether there was a “reasonable probability” 6 that an Article 1, § 6 claim would have been successful before the New York Court of Appeals.7
New York constitutional law has been enormously supportive of right to counsel claims such as Claudio’s. The New York Court of Appeals has consistently interpreted the right to counsel under the New York Constitution more broadly than the Supreme Court has interpreted the federal right to counsel. As the Court of Appeals declared, “[s]o valued is the right to counsel in this State, it has developed independent of its Federal counterpart. Thus, we have extended the protections afforded by our State Constitution beyond those of the Federal—well before certain Federal rights were recognized.” People v. Settles, 46 N.Y.2d 154, 161, 412 N.Y.S.2d 874, 877, 385 N.E.2d 612, 615 (1978) (citations omitted).
Claudio’s Article 1, § 6 claim had a reasonable probability of success despite the Appellate Division’s decision to deny the claim. Interpreting a line of cases that culminated in People v. Skinner, the Appellate Division found that Claudio’s state constitutional right to counsel had attached but the right was not violated because it did not include a right to effective assistance of counsel. We have serious doubts *804as to whether this is a correct interpretation of New York constitutional law. In particular, the Appellate Division’s distinction between the right to counsel and the right to effective counsel has no basis in Skinner or other cases interpreting the New York Constitution.
The Skinner court extended the reach of the New York Constitution’s right to counsel to situations where a person is not in custody but has retained counsel as a result of police investigation. As the court stated:
In retaining an attorney specifically in response to repeated police-initiated contacts, defendant unequivocally indicated that he felt himself unable to deal with the authorities without legal assistance. In a real sense, he had activated his constitutional right to interpose an attorney between himself and the overwhelming power of the State.
Skinner, 52 N.Y.2d at 31-32, 436 N.Y.S.2d at 211, 417 N.E.2d at 505. The right to effective assistance of counsel appears to be at the heart of the Skinner court’s decision to adopt a more expansive reading of the right to counsel. The court stated that its rule “simply recognizes the right and need of an individual to have a competent advocate at his or her side in dealing with the State.” Id. at 29, 436 N.Y.S.2d at 209, 417 N.E.2d at 503 (emphasis added).
Similarly, the district court decision that there was no reasonable probability of success on appeal for Claudio’s Article 1, § 6 claim is not supported by New York constitutional law. In reaching its decision, the district court relied almost exclusively on People v. Beam, 57 N.Y.2d 241, 455 N.Y.S.2d 575, 441 N.E.2d 1093 (1982), “the only Court of Appeals case dealing with effectiveness of attorney advice in such preliminary encounters with law enforcement.” Claudio, 791 F.Supp, at 990.8 Beam provides no better basis for the district court’s finding that there was no reasonable probability of success than Skinner.
In Beam, the Court of Appeals considered the case of a defendant who had misinformed his attorney about the incident for which the police wanted to question him. Based on this misinformation, the attorney advised his client to talk with the police. The police knew he had an attorney, but reasonably concluded that he had waived his right to have counsel present during the questioning on the advice of his attorney and then had waived his right against compelled self-incrimination. The Beam court held that there is “no obligation on the part of the police to seek some form of independent assurance that the decision of the suspect and his attorney to waive the suspect’s right to remain silent ... is good advice” and “[w]hen a person has had the benefit of counsel and then chooses to waive one of his rights, the police are not required to question the validity of that decision as long as they are assured that the decision was made in consultation with the suspect’s attorney.” Beam, 57 N.Y.2d at 253-54, 455 N.Y.S.2d at 581-82, 441 N.E.2d at 1099-1100.
The district court interpreted Beam to stand for a far broader proposition than is merited. Beam, as applied to this case, stands for the proposition that the police and prosecutors did not have a duty to question whether Claudio received competent advice from counsel before confessing. The Beam court, however, never reached the issue whether bad advice could serve as the basis for an Article 1, § 6 challenge in a preliminary encounter with the police. The issue was not addressed because counsel’s advice in Beam was based on false information from his client and, given the context, the advice was not clearly wrong. As the Beam court noted, “there are occasions when the best counsel will lead a suspect to waive one of his rights.” Id. at 254, 455 N.Y.S.2d at 582, 441 N.E.2d at 1099.
Both the Appellate Division decision and the district court’s reliance on Beam confuse the right to the effective assistance of *805counsel with the obligation of the State, in certain circumstances, to detect ineffective assistance. The dissent in the Claudio Court of Appeals decision emphasizes this problem.9 As stated earlier, neither the majority nor dissent reached the Article I, § 6 claim, or discussed Beam, because Claudio's counsel did not raise the issue on appeal. Nevertheless, Judge Hugh Jones, in dissent, pointed out a serious fallacy in the Appellate Division’s reasoning. People v. Claudio, 59 N.Y.2d at 563, 466 N.Y.S.2d at 274, 453 N.E.2d at 503. Judge Jones wrote:
Although it is true that the court, and perhaps the prosecutor in extreme instances, has the obligation to protect the defendant from representation by his counsel which is perceived at the time to be incompetent, the constitutional right to representation by competent counsel is self-standing, to be protected independent of misconduct on the part of the People.
Id. at 566, 466 N.Y.S.2d at 276, 453 N.E.2d at 505 (citation omitted); see also id. at 567 n. 4, 466 N.Y.S.2d at 276 n. 4, 453 N.E.2d at 506 n. 4. Judge Jones’ criticism of the Appellate Division is equally applicable to the district court’s use of Beam. The district court mistakenly focussed on the state’s obligation to determine the effectiveness of Claudio’s counsel rather than Claudio’s right to effective assistance of counsel.
The New York courts’ treatment of state constitutional right to counsel claims, as seen in cases such as People v. Skinner, lends powerful support to Claudio’s position that a state constitutional right to effective assistance of counsel begins once counsel has been retained in response to a police investigation. The Appellate Division’s initial finding that Claudio’s right to counsel had attached at the time Claudio retained Heller lends yet more credibility to this theory. Thus, we find that there was a reasonable probability that an Article 1, § 6 claim would have succeeded before the Court of Appeals.
Claudio meets the second requirement for an ineffective assistance of counsel claim as well. Gaudelli’s failure to raise the state constitutional claim fell “outside the wide range of professionally competent assistance.” Strickland, 466 U.S. at 690, 104 S.Ct. at 2066, No reasonably competent attorney should have missed the Article 1, § 6 claim, even though the Appellate Division ultimately rejected it. The Appellate Division raised the claim sua sponte, conceded the important issue that the right to counsel had attached, and addressed more attention to the state constitutional claim than it did to the federal issue. Moreover, as is discussed above, the Court of Appeals had an extraordinary history of broad readings of the right to counsel under the state constitution. Gaudelli’s decision not to raise the claim cannot be viewed reasonably as a strategic decision. Cf. Jones v. Barnes, 463 U.S. 745, 753, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987 (1983) (“A brief that raises every colorable issue runs the risk of burying good arguments”). In fact, Gaudelli’s brief to the Court of Appeals was nearly identical to the brief he submitted to the Appellate Division, and contained no new information or arguments to refute the Appellate Division decision. Thus, we find that, in light of all the circumstances, Gaudelli’s representation of Claudio was professionally unreasonable and constitutionally defective.
Finally, we reach Claudio’s third argument that his Sixth Amendment right to compulsory process was violated because the trial judge, Justice Agresta, refused to allow him to call District Attorney Santucci as a witness. Claudio maintains that Santucci’s testimony concerning his conversations with Heller prior to the confession was relevant to the question whether Heller’s undue pressure rendered the confession involuntary under New York law. See N.Y.Crim.Proc. Law § 60.45 (McKinney 1992). We do not believe that Claudio’s right to compulsory process was violated. *806We are not persuaded that the testimony of Santucci would materially differ from that which Claudio had the opportunity to elicit from the assistant district attorney who was in the office when the conversation between the District Attorney and Heller took place. Thus, Santucci’s testimony was neither material nor vital to his defense. See United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982); United States v. Biaggi, 705 F.Supp. 848, 849 (S.D.N.Y.1988).
CONCLUSION
Accordingly, the judgment of the district court is reversed, and the case is remanded with directions to grant the petition, unless the state affords Claudio an opportunity to present the Article 1, § 6 state law claim to the New York Court of Appeals within sixty days from the date of our mandate.
. Art. 1, § 6 provides in pertinent part:
In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions and shall be informed of the nature and cause of the accusation and be confronted with the witnesses against him.
N.Y. Const., Art. 1, § 6 (McKinney 1982).
. The court stated:
Defendant asserts only a violation of the Sixth Amendment of the United States Constitution, as applied to the States through the Fourteenth Amendment. Defendant does not claim before this court, nor did he do so at the suppression hearing or before the Appellate Division, that his right to counsel under the State Constitution has been violated. Therefore, this court has no occasion to consider the application of the State Constitution to defendant’s situation.
Claudio, 59 N.Y.2d at 560 n. 1, 466 N.Y.S.2d at 272 n. 1, 453 N.E.2d at 501 n. 1.
. Claudio argues that respondents waived the issue of whether there is a right to counsel for pre-trial appeals by not raising the question before the district court. We disagree and reach the merits of the issue. The cases cited by Claudio for his waiver proposition are distinguishable as they involve new claims rather than an additional argument relating to a point already under dispute. See Kraebel v. Dep’t of Hous. Preservation & Dev., 959 F.2d 395 (2d Cir.1992) cert. denied, - U.S. -, 113 S.Ct. 326, 121 L.Ed.2d 245 (1992); Grace Towers Tenants Ass'n v. Grace Hous. Dev. Fund Co., 538 F.2d 491 (2d Cir.1976); First Nat'l Bank of Cincinnati v. Pepper, 454 F.2d 626 (2d Cir.1972).
. Section 450.50 provides in pertinent part:
In taking an appeal, pursuant to subdivision eight of section 450.20, to an intermediate appellate court from an order of a criminal court suppressing evidence, the people must file ... a statement asserting that the deprivation of the use of the evidence ordered suppressed has rendered the sum of the proof available to the people with respect to a criminal charge which has been filed in the court either (a) insufficient as a matter of law, or (b) so weak in its entirety that any reasonable possibility of prosecuting such charge to a conviction has been effectively destroyed.
N.Y.Crim.Proc. Law § 450.50 (McKinney 1983).
. The federal constitutional right to effective assistance of counsel may be violated by an attorney’s failure to raise a meritorious state law claim or defense. See Miller v. Keeney, 882 F.2d 1428, 1435 (9th Cir.1989) (counsel not ineffective for omitting meritless state constitutional claim); Parton v. Wyrick, 704 F.2d 415, 416-17 (8th Cir.1983) (counsel not ineffective for omitting meritless state law claim); Nero v. Blackburn, 597 F.2d 991, 993-94 (5th Cir.1979) (counsel ineffective for omitting meritorious state law claim); Laffosse v. Walters, 585 F.Supp. 1209, 1212-13 (S.D.N.Y.1984) (counsel ineffective for filing Anders brief where non-frivolous claims, including state law claims, available); cf. McLeod v. Dugger, 735 F.Supp. 1011, 1014-15 (M.D.Fla.1990) (prejudice arising from failure to raise venue claim on appeal evaluated according to state law).
. In this context, "[a] reasonable probability is a probability sufficient to undermine the confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
.Respondents also argue that the Court of Appeals was procedurally barred from reaching the state constitutional claim because it was not the basis for the trial court’s suppression order. This claim is undermined by the Appellate Division’s decision to reach the state issue and respondent’s own brief which argued the merits of the state claim before the Court of Appeals. Furthermore, the cases cited by respondents are distinguishable from the case before the court as they do not involve claims that are strongly related and based on the same set of facts. See People v. Karp, 76 N.Y.2d 1006, 565 N.Y.S.2d 751, 566 N.E.2d 1156 (1990); People v. Goodfriend, 64 N.Y.2d 695, 485 N.Y.S.2d 519, 474 N.E.2d 1187 (1984).
. Beam was decided on October 19, 1982, after the Claudio Appellate Division decision, which was decided on March 15, 1982, and before the Claudio Court of Appeals decision, which was decided on July 7, 1983.
. It deserves mention that the two judges on the Court of Appeals who dissented in Claudio were in the majority in Beam.