
    No. 85-5116.
    Lucas v. New York.
   App. Div., Sup. Ct. N. Y., 3d Jud. Dept. Certiorari denied.

Justice White,

dissenting.

The issue presented in this case is whether the prohibition established in New Jersey v. Portash, 440 U. S. 450 (1979), against using a statement obtained from a criminal defendant in violation of his Fifth Amendment right against self-incrimination for impeachment purposes applies equally to statements taken in violation of the Sixth Amendment right to counsel. The United States Court of Appeals for the Second Circuit in United States v. Brown, 699 F. 2d 585 (1983), and the Tenth Circuit in United States v. McManaman, 606 F. 2d 919 (1979) (pre-Portash), have answered this question in the affirmative. The Appellate Division of the Supreme Court of New York in the present case, 105 App. Div. 2d 545, 481 N. Y. S. 2d 789 (1984), and the New York Court of Appeals in New York v. Ricco, 56 N. Y. 2d 320, 437 N. E. 2d 1097 (1982), however, have given the opposite answer. I would grant certiorari to resolve this conflict.  