(dissenting). On the morning of October 9, 1982, at about 4:30 a.m., Police Officers Gloria Brown and Barbara Bourne responded to 600 Baychester Avenue in Co-op City in The Bronx, to investigate a burglarized car. A tall, heavy black man let them into the building. Bourne identified the man as defendant, while Brown said she thought it was defendant. Later that morning, at about 5:55 a.m., Allison Brown entered her building at 600 Baychester Avenue. As she waited for the elevator, she saw a very big black man enter the building through the locked front door. The man wore a dark blue jacket, white polo shirt and blue pants and carried a dark brown or black overnight bag. She described the jacket as a "coach’s jacket” with snaps and a drawstring. She said the man was tall, weighed about 220 pounds, and had a mustache.
When the elevator arrived, both entered. Brown pressed the button for the thirteenth floor, and the man pressed three. Before the elevator reached the third floor, the man punched Brown on the left side of her face, knocking her unconscious. She awoke sometime later and was still in the elevator which had reached the thirteenth floor. Her face was bloodied and she felt pieces of teeth in her mouth. Brown entered her apartment and realized that her purse, which contained $14, was missing. She never saw the man take the purse. She then proceeded to contact the Co-op City security patrol and the New York City Police. Detective Drum, the Co-op City security officer, testified that Brown described her assailant as being five-feet nine-inches tall and weighing 215 pounds.
Shortly before 6:00 a.m. on that same morning, Officers Kevin Watson and Brian O’Laughlin were responding to a report of two Hispanic males stripping an automobile in Co-op City and were driving by 600 Baychester Avenue looking at the parked cars. They saw defendant running alongside 600 *97Baychester Avenue. He was dressed in a dark blue jacket and dark blue pants. The two officers exited their car and Watson yelled either "stop” or "stop, police”. At the same time, the officers had begun to run after defendant. Defendant turned, looked at the officers and then ran faster, dropping an object along the way. The officers continued running after defendant. Watson picked up the object the man dropped, a skirt with two holes and a white stain. O’Laughlin in the meantime had reached defendant and raised his nightstick to stop him. Watson then approached, drew his gun and told appellant to raise his hands. They questioned defendant as to why he ran and why he dropped the skirt. Defendant denied that the skirt was his or that he dropped it. The officers noticed a cut on one knuckle of defendant’s hand. Defendant was handcuffed and brought back to the patrol car. The officers then used their radio to request the assistance of a sergeant.
After Sergeant Hunt responded both he and O’Laughlin entered 600 Baychester Avenue to look for a victim. They found blood on the floor of an elevator. Two men in the building told the officers that they had heard a woman’s screams but had not been able to find anyone. The officers searched the building but found no victim.
The officers then obtained defendant’s name, address and telephone number and after making a call to verify this information released defendant. At no time did the officers see a woman’s purse or an overnight bag on defendant or near him.
Watson and O’Laughlin returned to the precinct to fill out a stop and frisk form when they overheard another officer talking on the phone to a person reporting a crime at 600 Baychester Avenue. Watson took the phone and spoke to Allison Brown who said she had been robbed and assaulted by a big black man wearing a blue jacket and blue pants.
After speaking with Brown in person, Watson, O’Laughlin, Sergeant Hunt and two other officers went to defendant’s apartment at about 7:00 a.m. Only Officers Watson and O’Laughlin, however, testified at the combined Huntley, Mapp and Wade hearing concerning the circumstances of the arrest which followed. Hunt was the one who knocked on the door and spoke to defendant. O’Laughlin could not hear anything that was being said. Watson testified that Hunt identified himself as a police officer and defendant opened the door. Watson also said that defendant somehow indicated that the *98officers could come in, but he could not recall exactly how defendant indicated that. The officers entered the apartment without guns drawn. However, it is admitted that their intent was to question and arrest defendant. Once the officers entered, defendant was arrested and told to get dressed. The officers had no arrest or search warrant.
At the suppression hearing, defendant testified that he had been lying in bed when he heard a knock on the door. He opened the door and Sergeant Hunt asked if he was Howard Jones and if anyone else was present. Defendant identified himself and said that his children were home. Hunt asked defendant to turn on a light. As defendant returned to do so, Hunt walked into the apartment. Watson and O’Laughlin entered close behind and told him that they were arresting him. Defendant denied ever having invited the officers in. Defendant got dressed in the same blue jacket and pants he wore earlier. Watson vouchered the blue zippered jacket which, contrary to Brown’s recollection, had no snaps. The jacket was introduced into evidence at trial.
Later that day, Allison Brown identified defendant as the robber from a photo array shown to her while she was in the hospital. On November 4, 1982, she viewed a lineup and identified defendant. At his arrest, defendant measured six feet, three inches and weighed 260 pounds.
At the conclusion of the suppression hearing, the court denied defendant’s motion to suppress in its entirety. Regarding his arrest, the court found that defendant had voluntarily admitted the officers into his apartment and thus consented to the warrantless arrest. As to the seizure of the skirt and the admissibility of the statements defendant made during the officers’ first encounter with him outside 600 Baychester Avenue, the court concluded that the stop was based on reasonable suspicion which justified a limited inquiry and denied suppression. The court also denied the motion to suppress the identification evidence, concluding that the photo array and lineup were not suggestive and an independent source existed for Brown’s identification of the defendant.
At trial, the District Attorney, over defense counsel’s vigorous objections was permitted to introduce testimony concerning the initial stop of defendant and the discarded skirt, under the theory of consciousness of guilt, although the skirt itself was not introduced into evidence. The skirt, however, concededly bore no relationship to the crime charged. The court also *99refused to give a charge concerning the weak probative value of consciousness of guilt evidence. As part of his defense, defendant introduced an accident report from work which showed that he had suffered an injury to his thumb on October 6, 1982.
After trial on February 16, 1984, defendant was convicted of robbery in the first degree and sentenced as a persistent violent felony offender to an indeterminate term of imprisonment of 25 years to life.
Among the many issues raised on appeal is the argument that the forcible stop of defendant at 6:00 a.m. and his subsequent warrantless arrest an hour later in his apartment were constitutionally impermissible and, therefore, mandated suppression of the unlawful fruits of that stop and arrest. Upon reviewing the applicable case law, I conclude that the police officers’ pursuit and seizure of defendant outside 600 Baychester Avenue went beyond lawful bounds and that the People failed to meet their burden of proving that defendant had consented to the warrantless arrest in his home approximately an hour later.
When Officers Watson and O’Laughlin spotted defendant running past 600 Baychester Avenue at approximately 6:00 a.m., they were possessed of no information regarding this person which could amount to even a "founded suspicion that criminal activity [was] afoot” so as to permit them so much as the common-law right of inquiry. (People v De Bour, 40 NY2d 210, 223.) The police officers were at the location in response to a radio run of Hispanics stripping cars in the area. Defendant, a lone black man, was not the subject of this radio report. Of significance also is the fact that defendant did not begin to run as a reaction to seeing the officers, but was already running when the officers arrived at this location. This is in stark contrast to the facts of People v Howard (50 NY2d 583), which prompted that court to conclude that a limited right of inquiry was permissible. In Howard, the defendant had been observed by the police officers carrying a woman’s vanity case in a high burglary area late at night. He was repeatedly glancing at the police, then changed his direction and quickened his pace, all before the police even attempted to question him (supra, at p 587). Here, all we have is a man running at 6:00 a.m. in the morning.
Neither did the officers have any right to pursue defendant and forcibly detain him when he failed to stop upon their *100request and instead continued running. Controlling on this issue is People v Howard (supra, p 586), where the court stated: "An individual to whom a police officer addresses a question has a constitutional right not to respond. He may remain silent or walk or run away. His refusal to answer is not a crime. Though the police officer may endeavor to complete the interrogation, he may not pursue, absent probable cause to believe that the individual has committed, is committing, or is about to commit a crime, seize or search the individual or his possessions, even though he ran away.”
Recognizing that a citizen’s flight might, however, in certain circumstances be a factor in determining whether there was cause to pursue the citizen, the Howard court added (supra, p 592): "Defendant’s flight, had there also been indicia of criminal activity would have been an important factor in determining probable cause * * * but where, as here, there is nothing to establish that a crime has been, or is being committed, flight, like refusal to answer, is an insufficient basis for seizure or for the limited detention that is involved in pursuit”.
These principles were recently reaffirmed by this court in People v Torres (115 AD2d 93). In Torres, the police had also been responding to a radio run of possible criminal activity which had no connection to the defendant. An officer spotted the defendant and attempted to elicit information from him about the radio run. Defendant refused to answer and walked away. Another officer watching the exchange then grabbed defendant and ordered that he answer the questions. Defendant ran away, pursued by three police officers who later recovered a gun defendant threw away in response to the unlawful police chase. Relying on Howard (supra), this court held (pp 97-99) that because there existed no objective evidence to suspect defendant of having committed any crime, defendant’s refusal to answer and his flight from the police did not provide the probable cause necessary to pursue and forcibly detain him.
People v Torres (supra) and People v Howard (supra) are controlling here. Officers Watson and O’Laughlin had absolutely no basis upon which they could reasonably conclude that defendant had committed any crime. Running outdoors at 6:00 a.m. on a public street is not a crime. Neither is refusing to stop for the police. All that the officers could have done was to follow defendant "unobtrusively”, if their suspicions had been aroused. (People v Howard, 50 NY2d, at p 592.) Instead, from the moment they first spotted him and yelled *101"stop”, the officers had been running after defendant causing him to continue running and discard the object he was holding.
Because this stop and seizure was unlawful, the fruits of that action, the ripped and stained skirt, about which prejudicial testimony was given at trial, and defendant’s statements denying that he dropped the skirt and claiming that he was returning home from gambling, which were introduced at the trial to discredit him, should have been suppressed. (Wong Sun v United States, 371 US 471; People v Rogers, 52 NY2d 527, 532.)
Defendant is also correct in arguing that the People did not satisfy their heavy burden of establishing that he voluntarily consented to the police officers’ entry into his apartment. A warrantless entry into a home to arrest someone is unconstitutional absent exigent circumstances or entry by consent. (Payton v New York, 445 US 573.) Whether in a given case consent has been freely given "or is only a yielding to overbearing official pressure must be determined from the circumstances” (People v Gonzalez, 39 NY2d 122, 128). The People bear a heavy burden of establishing that the consent was voluntarily and freely given. (People v Dodt, 61 NY2d 408, 417; People v Whitehurst, 25 NY2d 389, 391.) Because consent rests on a waiver of constitutional rights, "courts indulge every reasonable presumption against the waiver of such rights” (People v Rivera, 90 AD2d 778, 779). The People’s heavy burden has not been met here.
The only testimony concerning the officers’ entry into defendant’s apartment came from Officers Watson and O’Laughlin. Both agreed that it was Sergeant Hunt who knocked on the door and conversed with defendant. Yet, O’Laughlin admitted he was unable to hear the conversation. Watson, who stood to Hunt’s right, remembered Hunt identifying himself and remembered that defendant somehow indicated that the five police officers could come in, but Watson could not "remember exactly how” defendant indicated this. The absence of Sergeant Hunt’s testimony is very conspicuous. Without it, all that exists is the tremendously weak and ambiguous testimony of Officer Watson which hardly meets the People’s heavy burden of establishing consent, especially when the People’s position was flatly contradicted by defendant’s testimony.
Defendant openly admitted to having opened the door to *102Sergeant Hunt, who merely told defendant that a police officer was at the door. As defendant was turning on a light pursuant to Hunt’s request, Hunt entered the room followed by Watson and O’Laughlin who informed defendant that he was under arrest. Defendant denied ever having given consent to the officers to enter his apartment. Viewing the circumstances in their totality, I am persuaded that consent was never given.
One significant factor determinative of whether or not defendant consented is the fact that just an hour earlier defendant had refused to cooperate with Officers Watson and O’Laughlin when they yelled for him to stop. It is unlikely that within one hour of having been unlawfully detained defendant would have had a sudden change of heart towards the police and allowed them into his apartment to arrest him without a warrant. Also, the fact that five uniformed officers were at his door undeniably created a tense and coercive environment unconducive to the giving of a voluntary consent, especially given the fact that defendant also had the presence of his children to worry about. That three of the officers at the door were the same ones who had earlier forcibly detained him, must also be viewed as a factor which would render defendant’s consent improbable. These factors all support defendant’s claim that he did not give the officers his consent to enter his home.
The blue jacket seized as evidence pursuant to defendant’s arrest should, therefore, have been suppressed and should not have been introduced at trial. However, I do not agree with defendant’s position that the lineup identification should have been suppressed. While the identification of defendant from the photo array can certainly be viewed as a result of the arrest since it took place that same day, the lineup identification did not take place until almost a month later. By that time, defendant was certainly in custody as a result of legal process and not merely as the result of the arrest. Also relevant is the hearing court’s determination that the in-court identification had, in any case, an independent source. Under these circumstances, I conclude that the lineup identification was not tainted by the photo identification or the arrest.
Even assuming the lawfulness of the street stop which resulted in the seizure of the skirt, no testimony concerning the skirt should have been admitted at trial. That testimony was immensely prejudicial and denied defendant a fair trial, requiring a reversal of this conviction.
*103Over vigorous defense objections, Officers Watson and O’Laughlin were permitted to testify that when chased near the scene of the crime at 600 Baychester Avenue, defendant was holding a woman’s skirt with two holes and a white stain, which he discarded as he was chased and which, after he was stopped, he falsely denied having discarded. It is uncontroverted that the skirt had absolutely no connection to the crime charged. Nevertheless, the testimony was admitted under the theory that it showed "consciousness of guilt”.
Evidence of consciousness of guilt, although weak, is held to be admissible, but only when it is indicative of consciousness of guilt of the crime charged. (See, People v Moses, 63 NY2d 299, 308; People v Leyra, 1 NY2d 199, 209-210.) A different result is required, however, when the evidence only indicates consciousness of guilt of an uncharged crime. In People v Rivera (88 AD2d 892), the defendant, who was identified by the complainant as the person who had robbed him, threw a paper bag over a fence and into an alley when the police officers approached him. The bag contained a watch, but it was not the victim’s watch. Testimony of the watch, though unconnected to the crime charged therein, was permitted at the trial, also under a consciousness, of guilt theory. This court, which reversed the conviction solely on that issue, despite a positive identification by the victim, stated (p 893): "Since it was in no way connected to the robbery of Sumter, the evidence about the bag and its contents could only have the effect of leaving the jury with the impression that defendant had committed a similar but uncharged crime. Unless it constitutes evidence of a crime, one does not ordinarily disgorge himself of a watch upon a police command to stop. Evidence of an uncharged crime introduced solely to show that a defendant is of a criminal disposition and therefore likely to have committed the crime charged is inadmissible. (See, e.g., People v McKinney, 24 NY2d 180, 184; People v Schwartzman, 24 NY2d 241, remittitur amd 24 NY2d 914, cert den 396 US 846.) * * * We reject the argument that this evidence was admissible as reflecting a consciousness of guilt since the bag and its contents were not in any way connected to the Sumter robbery. Even if it were remotely relevant, such relevance was far outweighed by the prejudicial effect of the evidence. (See People v Davis, 43 NY2d 17, 27, cert den 435 US 998; People v Feldman, 296 NY 127, 137.) Evidence of consciousness of guilt has little probative value. (People v Leyra, 1 NY2d 199.)”
*104Likewise, here the prejudicial nature of the testimony concerning the skirt requires a reversal. The testimony, while irrelevant to the crime charged herein, must have certainly prompted the jurors to speculate concerning defendant’s reasons for carrying such an item and then discarding it upon being chased by the police. Their speculations could hardly have led to any innocent interpretation, especially given the fact that Officer Watson had been permitted to testify that judging from the holes and the white stain, he initially suspected that defendant had raped someone. Rather than having had any probative value in proving the crime charged, the only real effect this evidence had was to suggest quite strongly that defendant had committed a very serious and violent crime, and as a result of that was more likely than not to have committed the instant crime. As in People v Rivera (supra), the introduction of such testimony was prejudicial, requiring a reversal and a new trial.
Defendant was further deprived of his right to a fair trial by the trial court’s refusal to charge on the weak probative value of consciousness of guilt evidence with reference to the testimony that defendant was observed running away from the scene of the crime, continued to run after being ordered to stop and discarded the stained skirt with two holes. The People concede that the better practice would have been to give the charge, but argue that the error was harmless. I cannot agree. A reasonable possibility does exist that this error, especially in conjunction with the erroneous admission of the testimony regarding the skirt as evidencing consciousness of guilt, did affect the jury’s verdict.
As noted above, the testimony regarding the skirt was highly prejudicial, and there was a very real danger that the jury attached too much importance to it and the additional testimony of defendant’s flight. One way to have prevented the jury from overemphasizing the significance of this ambiguous evidence would have been to closely instruct the jury concerning its inherent weakness. (People v Yazum, 13 NY2d 302, 304.) The jury, however, did not have the benefit of such a charge, thereby permitting it to be unfairly swayed by this testimony and to resolve, in the People’s favor, any doubts they may have had of defendant’s guilt.
For all these reasons, I would reverse the conviction and order a new trial. I have reviewed the other points raised by defendant but find them to be without merit.