Judgment unanimously reversed, on the law and facts, and new trial granted. Memorandum: Defendant's confession obtained by police the day following his indictment should have been suppressed. Defendant's "indelible" constitutional right to counsel had attached (see People v. Cullen, 50 N.Y.2d 168; People v. Samuels, 49 N.Y.2d 218) and the waiver of his Miranda rights (Miranda v. Arizona, 384 U.S. 436) in the absence of counsel was, therefore, ineffective. There is no merit to defendant's contention that he was twice placed in jeopardy for the same charges because the trial court in his first trial had declared a mistrial due to the illness of a juror. Defendant's counsel refused to consent to the continuation of the trial with a substituted alternate juror and affirmatively declared on the record that a mistrial should be granted (see People v Singletary, 54 A.D.2d 767; Matter of Napoli v. Supreme Ct. of State of N.Y., 40 A.D.2d 159, affd 33 N.Y.2d 980, cert den 417 U.S. 947).