(dissenting). Although otherwise in agreement with my brethren in the majority, it is my belief that the search of the defendant’s car in this case was the lawful product of his voluntary consent, and that the judgment appealed from should therefore be affirmed.
Upon defendant being stopped by Officer Needleman on the evening of December 5, 1980, and in response to the latter’s call for assistance, four or five additional police cars containing six or seven additional officers soon arrived *215at the scene of the detention. Shortly thereafter one of these officers, Stephen King, approached the passenger side of the defendant’s vehicle and, according to both officers’ testimony, asked the defendant if it would be all right if he (the officer) looked through the defendant’s car. At this point, the defendant responded “Fine, go ahead”, whereupon Officer King opened the door on the passenger side of the vehicle and began searching the interior. There, beside the driver’s seat, and at the bottom of a “crumpled up brown paper bag”, the officer discovered the fully loaded revolver which led to the defendant’s arrest and conviction. No issue has been raised regarding the ownership of this weapon, which the defendant has freely admitted. Rather, the sole issue presented on this aspect of the case is whether the search of the car leading to the discovery of this weapon was lawful and proper. On this issue, the motion court found, as a fact, that “The search of the automobile, from the credible evidence before the Court, would have appeared to have been accomplished with the consent of the defendant, voluntarily given to the police officers, and the fruits of the search, the .38, or whatever it was that was discovered and seized, was validly seized.”
I agree and would therefore affirm.
Although the defendant was admittedly in the presence of several police officers on the night in question, the mere presence of a number of officers at the time that the consent is given is not determinative on the question of its voluntary nature (see People v Phiefer, 43 NY2d 719, 721; see, also, People v Murphy, 55 NY2d 819, 820). Rather, the number of policemen is only one of the factors to be considered by the court, which is to decide the issue based on the totality of the circumstances including the defendant’s age and experience, whether he had already been arrested at the time of his purported consent and whether he had ever been advised of his right to withhold his consent to the search (see People v Gonzalez, 39 NY2d 122, 128-130; People v Kuhn, 33 NY2d 203, 208-209). In this regard, the defendant at bar had not as yet been arrested at the time of Officer King’s request (see People v Gonzalez, supra), nor is there any testimony which would tend to indicate that he was physically “surrounded” by the other *216police officers, as opposed to their merely being present in the area. Moreover, according to the defendant’s own testimony, no weapons had been displayed by the police, nor had the defendant, a man of 45, been threatened or harmed or spoken to in a loud or abusive manner. In fact, the defendant was apparently secure enough regarding his personal safety to protest the “frisk” of his person. In addition, while denying that he had ever been asked to consent to the search of his vehicle, the defendant admitted at the suppression hearing that he had voluntarily assisted other police officers in opening the trunk of his car, and that he had completely forgotten about the presence of the weapon.
Under these circumstances, and mindful of the admonition that “much weight must be accorded the determination of the suppression court with its peculiar advantages of having seen and heard the witnesses” (People v Prochilo, 41 NY2d 759, 761), I am loath to disturb the factual determination of the motion court regarding: the voluntary nature of the defendant’s consent (see Schneckloth v Bustamonte, 412 US 218; People v Kuhn, supra), especially where, as here, that finding is fully supported by the credible evidence (see People v Murphy, supra; People v Phiefer, supra; People v Kuhn, supra) and is not opposed to the probabilities. On facts such as these, i.e., where a defendant knows that he is innocent of the crime under investigation and where he has no reason to believe that there is a weapon or other contraband in the vehicle he is driving, it is not at all difficult to believe that he would voluntarily have consented to a search of that vehicle, if only to assuage the officers’ suspicions and shorten the period of his detention, (cf. People v Stepps, 31 AD2d 59, 62). Moreover, the defendant conceded that he had neither been threatened nor abused, and that he had voluntarily assisted other police officers in opening the trunk of his car.
People v Falu (85 AD2d 501) is not to the contrary, as the policemen in that case “had questioned the defendant with regard to the car registration, removed from him a leather pouch which was searched, revealing bullets, had searched the car finding other bullets and marihuana, asked the defendant to step out of the car, and then frisked him”, all *217prior to requesting his permission to open the trunk of the car within which was found the weapon leading to his arrest and conviction for criminal possession of a weapon. Accordingly, the police conduct in Falu prior to requesting the defendant’s “consent” was far more intrusive than that demonstrated in the case at bar.
For all of these reasons, it is my belief that the search of the defendant’s car was lawful, and that the motion to suppress the physical and oral evidence resulting therefrom was properly denied.
Mollen, P. J., and Boyers, J., concur with Brown, J.; Gulotta, J., dissents and votes to affirm the judgment, with an opinion.
Judgment of the County Court, Nassau County, rendered October 27, 1981, reversed, on the law and the facts, motion to suppress granted, indictment dismissed and matter remitted to the County Court, Nassau County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.