Harwood, J., concurs in the result only, with the following memorandum: This case is before us on direct appeal, albeit following a retrial, as a result of an unusual procedural circumstance, which, without running the risk that doors in cases long since decided will be reopened (see, People v Pepper, 53 NY2d 213, 222, cert denied 454 US 967), affords us an opportunity to address a claim by what I regard as the preferred method, i.e., on the merits. In light of the fact that the defendant, who made a motion to suppress his statements before his first trial, made a new motion for suppression on Cunningham grounds (see, People v Cunningham, 49 NY2d 203) immediately prior to his retrial, I do not agree with my colleagues that the defendant waived his right to press his Cunningham claim on this appeal because his attorney failed to raise it on the appeal from his now-vacated judgment of conviction (see, People v Griswold, 58 NY2d 633; see also, People v Sanders, 56 NY2d 51, 56). I note, however, that my colleagues nonetheless comment upon that claim and I agree with their assertions that, although the disputed statements were obtained after the defendant requested an attorney (see, People v Cunningham, supra), the failure to suppress them does not mandate reversal because any error occasioned by that failure was harmless beyond a reasonable doubt (see, People v Crimmins, 36 NY2d 230; see also, People v Sanders, supra). Since I am otherwise in complete agreement with my colleagues, I concur in the determination that the judgment rendered upon retrial should be affirmed.