Opinion
February 11, 1980
Appeal by defendant from a judgment of the County Court, Westchester County, rendered (1) August 24, 1978, convicting him of rape in the first degree and (2) August 25, 1978 convicting him of incest, upon a plea of guilty, and imposing sentence. The appeal brings up for review the denial of the defendant's motion to suppress certain statements made by him on December 21, 1977. Judgment reversed, on the law, plea vacated, motion to suppress granted and case remanded to the County Court for further proceedings consistent herewith. As has now been conclusively established (People v. Samuels, 49 N.Y.2d 218), any statements obtained from the defendant following his uncounseled waiver of his right to remain silent following the filing, in court, of an accusatory instrument charging him with a crime must be suppressed (cf. People v. Torres, 63 A.D.2d 1033). As for the remaining issues, it is our view that the question regarding the propriety of the County Court's pretrial (informational) Molineux ruling was not preserved for review by the plea of guilty (see People v. Gilliam, 65 A.D.2d 533; cf. People v Maxim, 58 A.D.2d 674), and accordingly we express no opinion thereon. In light of our determination on the suppression issue, the Molineux question is, moreover, more properly committed to the discretion of the trial court for consideration de novo. Similarly, it is unnecessary in view of our determination to pass upon the propriety of defendant's "second felony offender" sentence. We have considered defendant's final contention and find it to be without merit. Lazer, J.P., Gulotta, Cohalan and Martuscello, JJ., concur. [ 94 Misc.2d 606.]