Judgment of the Supreme Court, New York County, rendered on February 25, 1970, convicting defendant of manslaughter, first degree, upon a jury verdict and sentencing him to an indefinite term of imprisonment not to exceed 25 years, reversed on the law and a new trial directed. Defendant, indicted for murder first degree, was found guilty of manslaughter first degree by jury verdict. Defendant had been in custody and under questioning by at least three detectives for several hours when an Assistant District Attorney appeared at the station house to interrogate him. Upon being advised of his rights, the defendant stated that he did not know how to read and write and that he wanted a lawyer before talking to the Assistant District Attorney and answering his questions. The Assistant continued talking to the defendant and repeating the question: do you want a lawyer? After three affirmative replies, the Assistant said to the defendant: "The point is this: It is Saturday. It is a quarter to 4:00. There is no place to get a lawyer for you now, as far as I know. You will probably be arrested on this charge" [homicide]. Having requested a lawyer three times and having been informed that no lawyer was available, and faced with the threat of arrest on a homicide charge, the defendant finally consented to talk without benefit of requested counsel. It is clear from an examination of the station house transcript that defendant did not voluntarily waive his constitutional right to remain silent in the absence of counsel. (See Miranda v. Arizona, 384 U.S. 436.) The defendant informed the Assistant District Attorney not once but three times that he wanted a lawyer. The Assistant invaded defendant's rights when he persisted in talking to the defendant until defendant capitulated and consented to answer questions. The Supreme Court in Miranda v. Arizona ( supra) has ruled that while a defendant may waive his right to remain silent and to counsel, such a waiver must be made "voluntarily, knowingly and intelligently". The court added (pp. 444-445): "If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him." And at page 474: "any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. * * * If the individual states that he wants an attorney, the interrogation must cease until an attorney is present." We hold that under the facts disclosed by this record the People did not meet their burden to show that the defendant voluntarily and intelligently waived his constitutional rights to remain silent and to the aid of counsel. The statements made by defendant to the Assistant District Attorney, whether inculpatory or exculpatory, were erroneously admitted into evidence. Such error was prejudicial and deprived defendant of due process of law, requiring a new trial.
Concur — Stevens, P.J., Capozzoli and Nunez, JJ.; Eager and Steuer, JJ., dissent in the following memorandum by Steuer, J.: We dissent. The instant case presents but another of the long list of reversals where the trial has demonstrated beyond any reasonable doubt that the defendant is guilty as found by the jury. It was established without contradiction that defendant returned to his residence after a period of incarceration. Defendant was on welfare prior to his sentence, and the department continued to send him checks despite the fact that his needs were already being cared for by another branch of government. Confidently expecting this, he had arranged with the deceased, his paramour (euphemistically referred to as his common-law wife) to cash the checks. On his return he discovered that she had done so but did not account for the proceeds satisfactorily. He also learned that she had been extending her favors to a friend of his. He promptly beat and strangled her to death. All of this appeared independently of the confession. It neither helps the cause of justice nor the administration of justice to order a new trial where the facts ineluctably point to a foregoing conclusion. We are not unaware that the erroneous admission of a confession is generally deemed to mandate a reversal. But, as in the case of all rules regarding a priori quantum evaluation of evidence, it should never be inviolate. Moreover, the alleged error is based on the proposition, not without some judicial support, that a request for counsel is irrevocable and that, once expressed by a defendant, it is beyond his power, as well as the prosecution's, to ever recall it. Here, as the majority points out, the request was made in certain terms. It was later reconsidered for reasons that appeared to be sufficient to the defendant, namely, that a statement might lead to his immediate release. We are not prepared to say that the earlier request forfeited defendant's privilege to waive counsel on the interrogation and to hold that the confession so given was involuntary.