MEMORANDUM.
The order of the Appellate Division should be reversed and a new trial ordered.
It is undisputed that defendant was represented by counsel at the time he was questioned by the police and the police were aware of such representation. Hence, defendant could not waive counsel except in counsel's presence. (People v Skinner, 52 N.Y.2d 24.) From the record before us, it cannot be concluded that a valid waiver which contemplated questioning in the absence of counsel took place when defendant and his attorney consented to the polygraph examination. This being so, the statements elicited from defendant in the absence of counsel by Investigator Brandstetter and Sergeant Wood immediately prior to the anticipated administration of the polygraph examination should have been suppressed.
Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER concur in memorandum.
Order reversed, etc.