
    The People of the State of New York, Respondent, v Donald Peoples, Appellant.
   Judgment unanimously reversed, on the law and facts, motion to suppress granted, and a new trial granted. Memorandum: Following the filing of a felony complaint in Lackawanna City Court charging defendant with murder in the second degree and robbery in the first degree and the issuance of a warrant for his arrest, defendant surrendered to the police who then obtained two signed statements from him outside the presence of counsel. Defendant moved to suppress the admissions made in the written statements based on an inadequate waiver of his Miranda rights (Miranda u Arizona, 384 US 436). The court denied the motion finding that defendant acknowledged his understanding of each right which was read to him before the statements were made, including his right to counsel which he voluntarily waived. Both of defendant’s statements were read into evidence at his jury trial, following which he was convicted of murder in the second degree and criminal possession of a weapon in the fourth degree. Defendant could not waive his rights without the presence of counsel because formal criminal proceedings, in the form of a felony complaint, had commenced against him, and so the statements must be suppressed (People v Samuels, 49 NY2d 218, 221, 223; People v Parker, 78 AD2d 580; People v Gigliotti, 75 AD2d 919; People v Walls, 74 AD2d 833). We have held that Samuels must be given retroactive application (People v Parker, supra; see, also, People v Bell, 50 NY2d 869; People v Cullen, 50 NY2d 168; People v Pepper, 76 AD2d 1006), and it is not material that the police were acting in good faith when they violated defendant’s constitutional rights (see People v Rogers, 48 NY2d 167). The introduction of these statements into evidence upon defendant’s trial was error which may not be viewed as “harmless beyond a reasonable doubt” (People v Crimmins, 36 NY2d 230, 237), and a new trial is required (see People v Russell, 73 AD2d 791). (Appeal from judgment of Erie Supreme Court — murder, second degree and another charge.) Present — Simons, J. P., Callahan, Denman, Moule and Schnepp, JJ.  