Submitted, for Appellant.
Jeanne A. Olivo, for Respondent.
MEMORANDUM:
The order of the Appellate Division should be affirmed.
We agree with the Appellate Division, for the reasons stated by Justice Sullivan (see, 165 AD2d 13), that the defendant's Sixth Amendment rights under the United States Constitution were not abridged by the court's ruling that defense counsel could not confer with his client during a luncheon recess. Nor do we perceive any basis for a different result under the State Constitution.
I disagree that this case, involving a two-hour luncheon recess during which defendant was denied all access to counsel, is controlled by Perry v Leeke (488 US 272). I would rule that the trial court abused its discretion and violated defendant's federal right to counsel. Moreover, the trial court's action clearly ran afoul of the greater protections afforded by New York's right to counsel clause (NY Const., art I, § 6).
Accordingly, I would reverse the conviction and order a new trial.
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Order affirmed in a memorandum. Chief Judge Wachtler and Judges Simons, Titone, Hancock and Bellacosa concur. Judge Kaye dissents and votes to reverse in an opinion.