Francis D. Phillips, II, District Attorney, Middletown (Andrew R. Kass of counsel), for appellant. Warren S. Hecht, Forest Hills, for respondent.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed. There is support in the record for the Appellate Division's determination that defendant unequivocally invoked his right to counsel while in custody, and that mixed question of law and fact is beyond our further review. We agree with the Appellate Division that the hearing court's error in failing to suppress defendant's statements was not harmless beyond a reasonable doubt and that defendant is entitled to a new trial.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH and PIGOTT concur.
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