Ordered that the judgment is affirmed.
The defendant, a shareholder and director of his codefendant B.P. Tavern, Inc., was jointly indicted and tried together with B.P. Tavern, Inc., another shareholder and director and two of its employees for certain gambling offenses in connection with the operation of a "Joker Poker" machine at Billy's Pub located in Mount Vernon, New York. The nonjury trial resulted in convictions of 4 of the 5 defendants. On appeal the defendant argues that the statements he made to an Assistant District Attorney outside the presence of counsel on April 25, 1984, six days after the execution of a search warrant for the premises of Billy's Pub, were improperly admitted into evidence in violation of his right to counsel. We disagree.
In the first instance, we note that although the claimed deprivation of the State constitutional right to counsel may be raised for the first time on appeal, a sufficient factual record must be made to permit appellate review (see, People v. Kinchen, 60 N.Y.2d 772). No factual record was established to permit appellate review of this issue. In any event, contrary to the defendant's position, the ex parte application for a search warrant did not constitute an adversarial judicial criminal proceeding at which point the defendant's right of counsel indelibly attached (see, People v. Smith, 62 N.Y.2d 306; People v Robinson, 122 A.D.2d 173, lv denied 68 N.Y.2d 1003; People v Mullings, 110 A.D.2d 720; People v. Frankos, 110 A.D.2d 713).
We have reviewed the defendant's remaining contentions and have found them to be without merit (see, People v. Herman, 133 A.D.2d 377 [decided herewith]). Mollen, P.J., Thompson, Bracken and Brown, JJ., concur.