
    The People of the State of New York, Respondent, v Michael Stanko, Appellant.
    [608 NYS2d 922]
   Judgment unanimously affirmed. Memorandum: Supreme Court properly refused to suppress defendant’s statement to police. Although defendant was in custody on a pending petit larceny charge at the time police questioned him concerning the subject homicide, defendant’s assigned counsel on the pending charge had not entered the proceeding to represent him at the time he confessed. Because assigned counsel was not actually representing defendant on the pending charge, defendant could waive his right to counsel prior to questioning on the unrelated homicide (see, People v Rosa, 65 NY2d 380).

Defendant failed to preserve for appellate review his contention that the trial court erred in failing to dismiss rape-related counts of the indictment prior to his second trial. We have reviewed defendant’s remaining contention and find that it lacks merit. (Appeal from Judgment of Supreme Court, Erie County, Kasler, J.—Murder, 2nd Degree.) Present—Pine, J. P., Balio, Doerr and Boehm, JJ.  