
    The People of the State of New York, Respondent, v Mario Mandrachio, Appellant.
    Argued January 4, 1982;
    decided February 9, 1982
    
      APPEARANCES OF COUNSEL
    
      William E. Hellerstein for appellant.
    
      Mario Merola, District Attorney (Allen H. Saperstein and Billie Manning of counsel), for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed.

The defendant’s contention that the police failed to scrupulously honor his right to remain silent was not raised in the trial court and thus has not been preserved for review. Nor in the context of this record can it be said, as a matter of law, that the prosecutor should have interpreted the defendant’s remark that he could not afford an attorney as a request for assigned counsel. Significantly the defendant himself did not suggest that his comment should be so construed until the case was on appeal.

We have considered the defendant’s other contentions and have found them to be without merit.

Judges Jasen, Gabrielli, Wachtler and Fuchsberg concur; Judge Meyer concurs in result only; Chief Judge Cooke dissents and votes to reverse for the reasons stated in the dissenting opinion by Justice John Carro at the Appellate Division (79 AD2d 278, 284-286); Judge Jones taking no part.

Order affirmed in a memorandum.  