
    The People of the State of New York, Respondent, v Nicholas Rosa, Appellant.
   Judgment, Supreme Court, New York County, rendered May 17, 1977, convicting defendant, following the denial of his Huntley motion, and after a jury trial of murder in the second degree and sentencing him to an indeterminate term of 20 years to life, reversed, on the law and the facts, the motion to suppress granted, and the matter remanded for a new trial. Following his arrest in Kings County on an unrelated charge, defendant was brought to New York County for questioning in this matter. His statement, admitted at the trial, was the only evidence placing him at the scene of this homicide. At his Huntley hearing, defendant had raised the Sixth Amendment claim that at the time of his questioning he was being represented by an attorney in the Kings County matter then pending. It does not appear that this claim was or can be controverted. Defendant’s statement must be suppressed (People v Rogers, 48 NY2d 167; as to the retroactivity of Rogers, see People v Bell, 50 NY2d 869; and People v Benitez, 76 AD2d 196). Concur — Kupferman, J. P., Sullivan, Carro, Silverman and Lynch, JJ.  