I concur with the majority that the record is insufficient to determine whether the People have met their burden of establishing probable cause to arrest defendant. However, I dissent from the majority’s conclusion that defendant’s confession was voluntary and admissible if it is found that there was probable cause for the arrest.
It is plain that defendant validly waived his Miranda rights. However, during the police interrogation at the precinct over a period of 45 minutes defendant repeated several times that he had been at the building at which the alleged burglary took place to visit a “numbers man”. The police officers then made clear to defendant that if he did not wish to cooperate they would see to it that he was charged with burglary in the second degree rather than burglary in the third degree, although the officers knew and had already determined that the maximum crime with which the defendant was chargeable was burglary in the third degree. The maximum sentence for burglary in the third degree is seven years, and in the second degree is 15 years.
Among the statements made by the police were “Well, if that’s your attitude, you don’t want to speak, don’t want to cooperate, I intend to talk to the district attorney and we’ll push this as far as we can.” The defendant was told that if he confessed the officers would speak to the District Attorney’s office to see that the case would not go to the Grand Jury. If defendant did not tell the officers what he was doing in the building they would speak to the District Attorney to attempt to have the case brought to the Grand Jury. When defendant continued to insist that he had been in the building “to see a numbers man” the officer said, “Okay, it is going to be two”. One of the officers testified he told defendant, “We had gone through this numerous times. Now you are going to be charged with Burglary Two.” There were other statements by the police, the substance of which was that if the defendant confessed he would be charged only with burglary three, but if he failed to do so the charge would be *275burglary two. When defendant asked what would happen if he told the police what they wanted to know, the officer replied, “We would speak to the d.a.’s office and see about the charge being Burglary Three.” Only then did defendant confess the burglary.
It is now urged that there was indeed a question whether there was a basis for charging the defendant with burglary two in the light of the time of his criminal activity. Insofar as pertinent here, the degree of crime depends upon whether such acts occurred at .night. The time was March 7, 1977, sometime between 6 and 7 p.m.
“A person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when * * *
“2. The building is a dwelling and the entering or remaining occurs at night” (Penal Law, § 140.25, subd 2).
If the event occurs during the daytime the crime is burglary in the third degree (Penal Law).
Subdivision 4 of section 140.00 of the Penal Law provides: “ ‘Night’ means the period between thirty minutes after sunset and thirty minutes before sunrise.” The contention now is that there was truly an inquiry as to whether defendant could have lawfully been chargeable with burglary second because the pertinent events occurred sometime between 6 and 7 p.m. on March 7,1977. However, it is significant that the police had already decided that the defendant could only be guilty of burglary three because of the time.
It is plain that defendant’s confession was a result of police pressure and a promise of a substantially more lenient charge if there was cooperation, and a threat of a more serious charge if there was none. Such a promise makes the confession involuntary, taken in violation of the privilege against self incrimination. The constitutional standard for an admissible confession is that it “must be free and voluntary : that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence. ... A confession can never be received in evidence where the prisoner has been influenced by any threat or *276promise; for the law cannot measure the force of the influence used, or decide upon its effect upon the mind of the prisoner, and therefore excludes the declaration if any degree of influence has been exerted.” (Bram v United States, 168 US 532, 542-543.) Measured by that standard, defendant’s confession was involuntary and should have been suppressed because it was obtained in violation of the Fifth Amendment to the Constitution. The privilege against self incrimination applies to involuntary confessions. (Miranda v Arizona, 384 US 436, 461-462.) The privilege against self incrimination embodied in the Fifth Amendment fully applies to State criminal trials. (Malloy v Hogan, 378 US 1.)
The manner in which the confession was obtained also made it involuntary and inadmissible pursuant to our Criminal Procedure Law. CPL 60.45 (subd 2, par [b]) makes a confession involuntary if obtained: “By a public servant engaged in law enforcement activity or by a person then acting under his direction or in cooperation with him: (i) by means of any promise or statement of fact, which promise or statement creates a substantial risk that the defendant might falsely incriminate himself”. Here there was a promise by the police of a substantially more lenient charge if there was cooperation. Such promise required that the confession be suppressed (People v De Jesus, 63 AD2d 148, app dsmd 48 NY2d 734).
As the majority states, here we do not have the long hours of questioning and other techniques held to overcome the defendant’s will in People v Bay (76 AD2d 592 [lv to app granted]). However, we do have direct promises of preferred treatment, denounced in Bram (supra) and in CPL 60.45 (subd 2, par [b]). What is more serious is that the promises were only to charge the defendant with the maximum crime of which he could be found guilty, coupled with the threat that he would be charged with a higher crime if he did not cooperate.
The People argue that defendant, an experienced criminal, well knew the distinction between burglary two and burglary three. This argument defeats itself. Defendant also undoubtedly knew that the testimony of the police as to when the events occurred might be crucial in determining *277the crime with which he could be charged and of which he could be convicted. Since the only evidence that the burglary took place about 6 P.M. was defendant’s confession, and the police did not arrest him until 7 P.M. after having observed him on a rooftop at 6 P.M., it is manifest that the confession was obtained by a thréa't and a promise which the Constitution and the statute interdict.
Accordingly, the judgment appealed from should be reversed, the plea of guilty should be vacated, the suppression motion granted and the action remanded for further proceedings.
Sullivan, Lupiano and Lynch, JJ., concur with Kupferman, J. P.; Fein, J., dissents in part in a separate opinion.
Determination of appeal from judgment, Supreme Court, New York County, rendered on October 19, 1977, held in abeyance and the case remanded solely for a hearing to determine if there was probable cause for arrest.