O’Brien, J., dissents and votes to reverse the judgment, on the law, to grant the branch of the defendant’s motion which was to suppress his statements to law enforcement authorities, and to order a new trial, with the following memorandum. I find that the statements made by the defendant to his codefendant in Hebrew were obtained from the defendant in violation of his right to counsel and were therefore inadmissible on the People’s direct case. Since the admission of these statements was not harmless error, I would reverse the defendant’s conviction and grant him a new trial.
The evidence adduced at the suppression hearing established that the defendant and his codefendant Henry Sapir voluntarily surrendered to the Office of the Attorney-General on a prearranged date following their indictment. They were immediately given Miranda warnings, and both refused to answer questions without an attorney being present. For the next two hours, the defendant and his codefendant remained in a squad room while their arrests were processed by Investigator Ernest Peck, who handled all the paperwork and asked them pedigree questions in English. Another police officer, Investigator Richard Friedman, was in the squad room during the entire period, but he merely sat in the rear of the room and did not participate in the processing of the arrest. Investigator Friedman testified at the hearing that he was placed in the room because the defendant and his codefendant spoke Hebrew, and he understood the language. His assignment was to write down everything the defendant and his codefendant said in Hebrew. According to Friedman, neither the defendant nor his codefendant asked him if he understood Hebrew. On five separate occasions, when Peck left the immediate area, the defendant and his codefendant conversed in Hebrew. Friedman later made notes of their conversations. In addition, while the defendant and his codefendant were in a courthouse *728hallway awaiting arraignment and Investigator Peck was absent, Investigator Friedman overheard another conversation in Hebrew. Investigator Friedman, as instructed by his supervisor, informed the defendant and his codefendant after their arraignment that he understood Hebrew. The hearing court refused to suppress the statements in Hebrew which were overheard by Investigator Friedman.
During oral argument of this appeal, the People acknowledged that Investigator Friedman was placed in the squad room for the express purpose of overhearing conversations by the defendant and his codefendant which were spoken in Hebrew. The People contend that this did not violate their constitutional rights because the statements were spontaneous. I disagree.
The defendant was indicted before he surrendered to the Attorney-General. Therefore, his right to counsel had attached at the time the statements were overheard by Friedman. As stated in People v Settles (46 NY2d 154, 161-163), once an indictment is returned, the character of the police function shifts from investigatory to accusatory. The suspect is now the accused, and there ought to be no necessity for further police investigation. The indictment commences the formal judicial proceedings against the defendant, and "it is at that point at which the assistance of counsel is indispensable” (People v Settles, supra, at 163). Consequently, all postindictment interrogation in the absence of counsel is prohibited, and a criminal defendant under indictment and in custody may not waive his right to counsel unless he does so in the presence of counsel (see also, People v Samuels, 49 NY2d 218). Furthermore, the defendant here expressly refused to answer questions in the absence of counsel. A defendant who has invoked his right to counsel may not waive that right in the absence of counsel (see, People v Cunningham, 49 NY2d 203), and any statement obtained in violation of this rule must be suppressed (see, People v Hobson, 39 NY2d 479).
Although the defendant never waived his right to counsel in the presence of counsel, the People contend that his statements are nevertheless admissible because they fall within the exception for statements which are spontaneously volunteered (see, People v Gonzales, 75 NY2d 938, 939, cert denied 498 US 833; People v Kaye, 25 NY2d 139, 143-144). For this exception to apply, "the spontaneity has to be genuine and not the result of inducement, provocation, encouragement or acquiescence, no matter how subtly employed” (People v Maerling, 46 NY2d 289, 302-303; see also, People v Gonzales, supra). The *729statement must, in effect, be forced upon the officer (see, People v Maerling, supra, at 303). While it is undisputed that Friedman made no overt attempt to elicit statements from the defendant, the issue is whether the police "endeavored, by subtle maneuvering or otherwise” to overhear conversations which were meant to be private (see, People v Harris, 57 NY2d 335, 342, cert denied 460 US 1047; People v Sobolof, 109 AD2d 903, 905).
By conversing in Hebrew with his codefendant, the defendant obviously intended his conversations to be private, even though a third party was present in the room. In People v Cooper (307 NY 253) the Court of Appeals indicated that a new trial would be required if the proof had established that a Yiddish-speaking police officer was planted in the courtroom in order to overhear and report on conversations in Yiddish between the defendants and their attorney. The court noted that such an intrusion on an attorney-client conference "is particularly offensive where defendants have sought to keep their conversations and communications secret and confidential by resort to a foreign language” (People v Cooper, supra, at 259). While the case at bar does not involve an attorney-client conference, it is nonetheless contrary to any sense of fair play to circumvent the defendant’s right to counsel by attempting to overhear his conversations with a codefendant in a foreign language. Friedman concededly was placed in the room for the express purpose of overhearing such private conversations and did not warn the defendant that he understood Hebrew until after the arraignment. This case is therefore distinguishable from those cases where the police, through inadvertence, happen to overhear conversations in their presence (see, e.g., People v Harris, supra [a statement blurted out by the defendant to her attorney over the telephone at the scene of the crime was admissible since the police officer had not "endeavored, by subtle maneuvering or otherwise” to overhear the conversation but was backing out of the room when he inadvertently overheard it]; see also, People v Murphy, 163 AD2d 425; People v Stewart, 160 AD2d 966; People v Sobolof, supra; People v Borcsok, 107 AD2d 42).
The police activity here was more akin to that in People v Grimaldi (52 NY2d 611), in that a deliberate effort was made to surreptitiously overhear the defendant’s conversations. In Grimaldi, the defendant was arraigned and assigned counsel. State Police investigators were unsuccessful in questioning him and arranged for the defendant, at his request, to be returned to his cell and to telephone his father. Once the *730telephone was provided, unbeknownst to the defendant, the investigator hid and eavesdropped on the defendant’s conversation. The Court of Appeals rejected the contention that the statements were admissible because they were not directly elicited by the police and held that since the police arranged, acquiesced in, and took affirmative advantage of the telephone call, the statements were obtained in violation of the defendant’s right to counsel.
As a practical matter, I see no real difference between the trickery employed by the Attorney-General here and that used by the police in Grimaldi. In both cases the intent was the same — to unfairly obtain incriminating testimonial evidence from a defendant in the absence of his attorney, after his right to counsel had attached. There is no way that on the facts here it can be honestly said that the Sixth Amendment was not violated because the incriminating evidence was obtained by the prosecution " 'by luck or happenstance’ ” (Kuhlmann v Wilson, 477 US 436, 459, quoting Maine v Moulton, 474 US 159, 176).
In Kuhlmann v Wilson (supra) the police were investigating a murder which occurred during the robbery of a taxicab garage in the Bronx. The defendant, a former employee, had been recognized as one of the robbers. After he turned himself in, the defendant admitted being present during the robbery and described the robbers but claimed not to know their names. The defendant’s cellmate was specifically instructed by the police "simply to 'keep his ears open’ for the names of the other perpetrators” (Kuhlmann v Wilson, supra, at 439). While the defendant never revealed the names of the other perpetrators, he made an unsolicited statement to the cellmate inculpating himself (Kuhlmann v Wilson, supra, at 438-440). The distinction between the facts here and those in Kuhlmann is that in Kuhlmann the police were legitimately seeking information concerning the identity of the defendant’s accomplices. In this case, unlike what occurred in Kuhlmann, Investigator Friedman was on a quest for inculpatory evidence from the defendant and his codefendant. There is no support in the record here for a finding that the defendant’s statements were "spontaneously volunteered and not the result of 'inducement, provocation, encouragement or acquiescence’ ” (People v Gonzales, supra, at 939, citing People v Maerling, supra, at 302-303). On the contrary, this was a planned operation, a classic "set-up”. By "intentionally creating a situation likely to induce [the defendant] to make incriminating statements without the assistance of counsel, the Government *731violated [his] Sixth Amendment right to counsel” (United States v Henry, 447 US 264, 274).