In People v. Waterman, 9 NY2d 561, 175 NE2d 445, 216 NYS2d 70 (1961), the Court of Appeals noted that "while it is not clear when the substitution of names was made in the indictment, it is clear that at the time of the police questioning, the defendant was in fact an accused" (id p 564).

It held that "there can be no doubt that the police officer knew prior to questioning the defendant that he had been indicted for that crime" (id.), and thereupon suppressed the defendant's statements.

Thus, Waterman calls into question the applicability in New York of the strict Giacalone standard that the right to counsel does not attach until the defendant's name is actually substituted on the indictment. [United States v. Giacalone (508 F Supp 39 [SDNY 1980], affd 659 F2d 1063 [2d Cir 1981], cert denied 454 US 964, 102 S Ct 505, 70 L Ed 2d 380 [1981])]