While we agree with the majority’s conclusion that defendant’s arrest was violative *208of his Fourth Amendment rights upon retroactive application of Payton v New York (445 US 573), we disagree with that portion of the statement which holds that the illegal arrest does not compel suppression of defendant’s confession. We would adhere to the language in our original decision on defendant’s appeal which, albeit in dictum, stated: “Of course, if the arrest was defective the subsequent confession could not be admitted because the connection between the arrest and the inculpatory statement had not yet become so attenuated as to dissipate the taint”. (People v Graham, 69 AD2d 544, 547.) Since the confession is inadmissible in our view, we also disagree with the majority’s conclusion that the failure to suppress certain items of physical evidence which were seized from the Florida motel rooms was harmless beyond a reasonable doubt. Without the confession, it cannot be said that there is no reasonable possibility that the erroneous admission of the items seized at the motel contributed to defendant’s conviction (see People v Sanders, 56 NY2d 51, 67; People v Crimmins, 36 NY2d 230, 237).
Accordingly, we would reverse defendant’s conviction on all four counts, reinstate the entire indictment, and remit the case for a new trial.
Weiss, J., concurs with Levine, J.; Kane, J., concurs in a separate opinion; Mahoney, P. J., and Sweeney, J., dissent and vote to reverse in an opinion by Mahoney, P. J.
Judgment modified, on the law and the facts, by reversing the convictions of kidnapping in the first degree and robbery in the first degree and dismissing the counts of the indictment therefor, and, as so modified, affirmed.