(concurring). I concur in the result on constraint of People v Schroder (71 AD2d 907).
In my view, the case at bar is functionally indistinguishable from People v Schroder (supra) in terms of the efficacy of the defendant’s “waiver” of his Miranda rights (cf. People v Vigliotti, 75 AD2d 859), and on that basis I am constrained to agree that the inculpatory statement made to Officer Rice at the scene of defendant’s arrest, as well as the physical evidence thereafter obtained from his apartment, were improperly ruled admissible.
Contrary to the views expressed by the majority, I cannot accede to their attempt to distinguish People v Schroder (supra) on the ground that the defendant therein was specifically asked to waive his Miranda rights, as the foregoing would only tend to place an unwarranted premium upon the willful or negligent failure of the police to ask a defendant in custody to expressly waive his rights with the aim of securing an eventual waiver by conduct. Stated differently, *310it would appear that if People v Schroder (supra) is to be read to mean that once a defendant in custody has been asked to waive his Miranda rights, a failure on his part to answer the question will be deemed tantamount to an invocation of his right to have an attorney present, thereby foreclosing the prospect of farther inquiry, I am afraid that the likely result will be a marked decrease in the number of cases in which the question will be asked in the first instance. This, in my view, would constitute a highly undesirable state of affairs, for, as we.recently observed in People v Harris (79 AD2d 615, 616), “it would be far better if the police were to elicit an express waiver of constitutional rights before questioning one who is in custodial detention.” Moreover, unlike my brethren in the majority, I am not convinced that the officer’s statement regarding the ability to test the gun for' fingerprints was coercive under the facts of the instant case or had any tendency whatsoever to overbear the defendant’s will (see People v Gaines, 41 AD2d 742; cf. People v Tarsia, 50 NY2d 1). The defendant, in fact, never so claimed before the motion court, but maintained, inter alia, that he had never been advised of his rights and had never admitted ownership of the gun. Finally, assuming, arguendo, that the officer’s remark was somehow “provocative”, I am compelled to point out that this factor, standing alone, still “does not tell us that the confession that quickly followed was any more than the product of the permissible intimation that it was useless for [the defendant] to conceal his culpability any longer” (People v Tarsia, supra, p 12).
Were I writing upon a “clean slate”, however, I would be disposed to hold in accordance with the courts of a number of our sister jurisdictions that where, as here, a defendant in custody has been fully informed of his rights and has indicated that he understands them, his subsequent voluntary decision to speak to the police without requesting an attorney may, in all but the most unusual of circumstances, be held to constitute a valid waiver (see, e.g., Blackmon v Blackledge, 541 F2d 1070 [CCA4th]; United States v Montos, 421 F2d 215 [CCASth], cert den 397 US 1022; United States v Ganter, 436 F2d 364 [CCA7th]; United States v Marchildon, 519 F2d 337 [CCASth]; Hughes v Swenson, 452 F2d 866 [CCASth]; United States v Moreno-Lopez, 466 *311F2d 1205 [CCA9th]; Bond v United States, 397 F2d 162 [CCA10th]; Mitchell v United States, 434 F2d 483 [CCA DC], cert den 400 US 867; State v Pineda, 110 Ariz 342; People v Johnson, 70 Cal 2d 541; People v Weaver, 179 Col 331; People v Brooks, 51 Ill 2d 156; Commonwealth v Murray, 359 Mass 541; see, also, North Carolina v Butler, 441 US 369, 373, 375, n 6; United States v Boston, 508 F2d 1171 [CCA2d]; cf. People v Schroder, supra). Upon such an analysis, I would therefore conclude that where, as in the case at bar, a 27-year-old predicate felon has been taken into custody and carefully apprised of his rights, we may take from his on-the-scene admission of understanding that he truly comprehends their meaning, and that his subsequent decision to speak to the police without the presence of an attorney constituted a knowing and intelligent waiver (see People v Gaines, 41 AD2d 742, supra).
People v Norris (75 AD2d 650, 652) is supportive of this position, for all that was written in that case was merely to establish the fact of defendant’s understanding of his Miranda rights, which, when taken with his conduct in voluntarily speaking to the police, was held to constitute a valid waiver. The more recent cases of People v Harris (79 AD2d 615, supra) and People v Baez (79 AD2d 608) are also consistent with this approach. In fact, the only element which appears to be lacking is the express overruling of People v Schroder (supra), which perhaps is implicit in the majority’s determination herein.
Were it not for the suppression of the roof-top admissions, I would find no infirmity in the defendant’s consent to the entry and search of his apartment subsequent to his arrest (cf. People v Goldsmith, 76 AD2d 843). Accordingly, were it not for our recent decision in People v Schroder (supra), I would vote to uphold the decision of the suppression court. In that event I would, however, modify the conviction of criminal possession of marihuana in the fifth degree (Penal Law, § 221.10 [as it read prior to the 1979 amendment]) to unlawful possession of marihuana (Penal Law, § 221.05) in light of the absence of any trial evidence regarding the “pure” weight of the marihuana discovered in the defendant’s apartment (see People v Houston, 72 AD2d 369).
*312• Mollen, P. J., O’Connor and Weinstein, JJ., concur with Gibbons, J.; Gulotta, J., concurs in the result, with an opinion.
Judgment of the Supreme Court, Queens County, rendered October 5, 1978, reversed, on the law and the facts, motion to áuppreds granted and indictment dismissed.
This case is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion, pursuant to CPL 160.50.