In this case, after the right to counsel had attached, the police and District Attorney sought to and did deprive defendant of that right. This was a clear violation of the right to counsel guaranteed by article I, section 6 of the NY Constitution. It is also a violation of People v Rogers (48 NY2d 167 [1979]). Accordingly, I would reverse the conviction and remand the case for a new trial at which the defendant’s statement should be excluded.
Defendant was convicted after a jury trial of murder in the second degree (Penal Law § 125.25 [3]) and robbery in the first degree (Penal Law § 160.15 [3]) and sentenced to concurrent indeterminate prison terms of from 15 years to life on the felony murder count and from 5 to 15 years on the robbery count. Prior to trial, a motion to suppress a videotaped statement was denied.
The facts are as follows. The body of the deceased, Olav Kjonstad, was discovered on June 2, 1983 in his apartment. The medical examiner determined that he died of internal and external bleeding caused by multiple stab wounds. The approximate date of death was May 31 or June 1, 1983. On June 28, 1983, Detectives Lachenmeyer and Canavan learned that Frank Bruno, a defendant in an unrelated case, who was at the Manhattan central booking facility, had knowledge of a robbery which ended in the stabbing of the victim. On July 9, 1983, Detective Canavan interviewed Bruno at Hikers Island Prison. Bruno stated that he ran into defendant and a John Flynn in Washington Square Park. There, defendant described a scenario involving a prearranged plan in which Flynn picked up Kjonstad in Washington Square Park and accompanied Kjonstad to his apartment. Kjonstad became alarmed when Flynn buzzed him, the defendant, in. As Kjonstad attempted to flee, Flynn dragged him back into the apartment. Defendant told Bruno that as he left the apartment, there was "blood in the hallway and blood all over the place.”
The detectives later learned that defendant had an active shoplifting case in Manhattan Criminal Court. When defendant failed to appear for his November 9, 1983 court date, a bench warrant was issued. Defendant eventually surrendered on the November bench warrant. He was released on his own recognizance to return on December 6, 1983. Following a conversation on December 5, 1983, Assistant District Attorney (ADA) Kitsis, who was handling Murray’s shoplifting case, allegedly got the mistaken impression that defendant was a witness to the Kjonstad homicide/robbery case, and was un*323willing to talk to the police unless the shoplifting case was disposed of. ADA Kitsis then spoke to the attorney prosecuting the Kjonstad homicide case, ADA Garay, and informed her that he would dispose of the shoplifting case the next day by offering defendant a plea to disorderly conduct. On the misdemeanor file Kitsis wrote "dispose of this case at all COSTS EVEN IF WE HAVE TO DISMISS IT OUTRIGHT * * * Deborah Garay has an on-going murder investigation and the police want to talk to this defendant (they may be in court). He won’t talk to them while he has an open case.”
Detectives Canavan, Finelli and Lachenmeyer appeared in court on December 6, 1983 after receiving notice of Murray’s appearance on that date from ADA Garay. In the courtroom ADA Cornett Lewers was approached by the detectives, who informed him that they wanted to talk to defendant about a homicide investigation and asked if Lewers could dispose of the case. Lewers informed them that Murray’s counsel had not yet arrived. After the third inquiry ADA Lewers and Kitsis, who was assigned that day to the Part, conferred and decided to have the shoplifting case called. The AD As moved to have the case dismissed "on a broad range of factors.” The court granted the motion.
As defendant and his father left the courtroom, the detectives asked them if they would talk to them at the station house. Both agreed. At the station house the detectives placed defendant in a separate room and read him his Miranda rights. He signed a form to that effect. The detectives then informed defendant that an informant had implicated him in a robbery of Kjonstad. Within 20 minutes, defendant confessed to his participation in the robbery and signed a confession. At that point, the detectives informed defendant that he was under arrest for murder in the second degree. He was again read his Miranda rights. Defendant’s father was notified of the arrest, but was not told that his son was charged with murder. Defendant was again read his Miranda rights before making a videotaped statement. In that statement defendant admitted robbing Kjonstad but denied he saw him bleeding or that there was blood in the apartment. Defendant, still in custody, retraced the day of the robbery. He took the detectives to 11 Fifth Avenue instead of 14 Fifth Avenue, where the robbery/murder occurred. When he was brought to 14 Fifth Avenue, he did not recognize the place.
Defendant’s motion to suppress his confession was denied by the lower court. It held that defendant’s shoplifting case was *324dismissed for the sole purpose of allowing detectives to question defendant without the presence of his attorney and that defendant was in custody when he arrived at the police station. The trial court, nevertheless, held that the confession was proper since defendant knowingly and voluntarily waived his right to counsel.
On appeal, defendant contends that his statement and confession should have been suppressed because he never voluntarily waived his Miranda rights.
Where a defendant is represented by counsel on a given case, the police may not question him on an unrelated matter in which he does not have an attorney. (People v Rogers, 48 NY2d 167, supra.) If they do and the defendant makes a statement, it must be suppressed. (People v Rogers, supra; see also, People v Bartolomeo, 53 NY2d 225 [1981].) Additionally, once the right to counsel attaches, it cannot be waived unless the attorney is present (People v Bartolomeo, supra; People v Rogers, supra). The detectives learned that defendant was represented by counsel in the shoplifting case soon after he became a suspect in the Kjonstad murder/robbery case. The shoplifting case, as the trial court found, was disposed of for the sole purpose of allowing the police to question the defendant in the absence of his attorney. Further, as found by the trial court, the defendant was in custody at the time he was interrogated at the police station. The collaboration between the detectives and prosecutors constituted a blatant effort to circumvent the Rogers and Bartolomeo decisions. As a result of this collaboration, the defendant was effectively deprived of counsel at the time of his alleged "waiver” and did not therefore knowingly and voluntarily waive his right to counsel. The case at bar is not analogous to People v Colwell (65 NY2d 883 [1985]), a case relied on by the majority. There, the Court of Appeals held that the Rogers requirements do not extend to a situation where defendant is represented on appeal from a criminal conviction. In that case the criminal case reached a conclusion following the normal court process. In the case at bar, the shoplifting case was hastily dismissed in the absence of defendant’s attorney as part of a scheme to deprive defendant of counsel. Although the People argue that they dismissed the case on the mistaken belief that defendant was only a witness to the homicide/robbery, this assertion is unconvincing.
It is true that People v Colwell contains a statement that "[a] primary concern underlying Rogers was that a defendant *325could incriminate himself on the pending charge, on which he is represented, even though the questions ostensibly concern unrelated charges.” (65 NY2d, supra, at 885). As the People argue, there is no longer any chance that a defendant will incriminate himself where a case has been dismissed. Nevertheless, this case does not involve a situation where a case has terminated in the ordinary course of the court’s business with a defense attorney present. If that were so, I would have no problem in joining the majority. It is a case where the police and prosecutors have cooperated to deprive a defendant of an attorney. This court should not sanction that action.
I respectfully dissent.