(dissenting).
I dissent and would reverse the judgment appealed from and remand the matter to Supreme Court for a new trial.
Defendant was arrested in his apartment, without a warrant, by police officers who entered the apartment with drawn guns while another officer was at a window on the fire escape. Police officers and detectives had gone to the defendant’s apartment. When there was no response to their knocking at the door, one of the officers went down the fire escape to the window of defendant’s apartment. That officer was on the fire escape for two or three minutes. He had knocked on the window and said ’’Police”. A detective at the door called out: ’’Police”. The defendant then admitted the detectives at his door, who, as noted, had their guns drawn. (One of the officers, when asked, on cross-examination at the hearing, by the defendant, pro se: ’’Did you have my consent to be in that apartment?”, responded ”No”.)
The police conceded that no attempt had been made to obtain a warrant for the defendant’s arrest. It was also conceded that they would have ’’taken him into custody (for *476questioning” (emphasis added) had he not wanted to talk to them. The defendant made inculpatory statements while in custody in the apartment.
Criminal Term correctly found that the defendant had submitted to police authority in admitting them to his apartment. The court suppressed the statements stating: "No more clear violation of Peyton [sic], in my view, could be established.”
The defendant was then taken to the 44th Precinct where Miranda warnings were once again read to him and where he signed an inculpatory statement. This statement was made one hour after the unlawful arrest in the defendant’s home. Thereafter, the defendant made a videotaped statement to an Assistant District Attorney. When asked by the Assistant District Attorney "Now that I have advised you of your rights, do you want to speak to me about the death of Thelma Staton?” The defendant responded: "Well, I really don’t know what to say right now.” The court suppressed the videotaped confession, finding no clear waiver of the defendant’s right to remain silent. Having suppressed the statement made by the defendant in his apartment and the videotaped statement made by him to the Assistant District Attorney, the court nonetheless refused to suppress the written statement of the defendant finding "sufficient attenuation; the rights were given again.” Presented for review on this appeal is this branch of the court’s ruling on the motion.
Brown v Illinois (422 US 590 [1975]) is instructive on, and in my view determinative of, the issue here involved. In that case, the defendant was arrested at the entrance to his apartment for questioning regarding a homicide. He was taken to the police station where he was informed of his rights under Miranda v Arizona (384 US 436). About one hour after the arrest at his apartment he made an inculpatory statement. The Supreme Court of Illinois (56 Ill 2d 312, 317, 307 NE2d 356, 358) found the arrest to be unlawful, but declined to suppress the station house statement, finding that the giving of the Miranda warnings "served to break the causal connection between the illegal arrest and the giving of the statements, and that defendant’s act in making the statements was 'sufficiently an act of free will to purge the primary taint of the unlawful invasion.’ (Wong Sun v. United States, 371 US 471, at 486.)” In reversing the Supreme Court of Illinois, Justice Blackmun wrote (422 US, at pp 602-604):
"If Miranda warnings, by themselves, were held to attenu*477ate the taint of an unconstitutional arrest, regardless of how wanton and purposeful the Fourth Amendment violation, the effect of the exclusionary rule would be substantially diluted. See Davis v. Mississippi, 394 U. S. 721, 726-727 (1969). Arrests made without warrant or without probable cause, for questioning or 'investigation’ would be encouraged by the knowledge that evidence derived therefrom could well be made admissible at trial by the simple expedient of giving Miranda warnings. Any incentive to avoid Fourth Amendment violations would be eviscerated by making the warnings, in effect, a 'cure-all,’ and the constitutional guarantee against unlawful searches and seizures could be said to be reduced to a 'form of words.’ See Mapp v. Ohio, 367 U.S., at 648.
"It is entirely possible, of course, as the State here argues, that persons arrested illegally frequently may decide to confess, as an act of free will unaffected by the initial illegality. But the Miranda warnings, alone and per se, cannot always make the act sufficiently a product of free will to break, for Fourth Amendment purposes, the causal connection between the illegality and the confession. They cannot assure in every case that the Fourth Amendment violation has not been unduly exploited. See Westover v. United States, 384 U. S. 436, 496-497 (1966).
"While we therefore reject the per se rule which the Illinois courts appear to have accepted, we also decline to adopt any alternative per se or 'but for’ rule. The petitioner himself professes not to demand so much. Tr. of Oral Arg. 12, 45, 47. The question whether a confession is the product of a free will under Wong Sun must be answered on the facts of each case. No single fact is dispositive. The workings of the human mind are too complex, and the possibilities of misconduct too diverse, to permit protection of the Fourth Amendment to turn on such a talismanic test. The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, see Johnson v. Louisiana, 406 U. S. 356, 365 (1972), and, particularly, the purpose and flagrancy of the official misconduct are all relevant. See Wong Sun v. United States, 371 U. S., at 491. The voluntariness of the statement is a threshold requirement. Cf. 18 U.S.C. § 3501. And the burden of showing admissibility rests, of course, on the prosecution.”
In United States v Johnson (626 F2d 753 [9th Cir 1980], affd *478457 US 537 [1982]), the defendant was arrested in his home by agents with drawn guns. He was given Miranda warnings and agreed to cooperate. The defendant thereafter made a statement at a police station. The Ninth Circuit suppressed both statements, observing "Having given one statement which inculpated him in the crime, he had already committed himself; there was little incentive to withhold a repetition of it.” (626 F2d, at p 759.)
In all cases in which consent of the defendant is at issue, the People have a heavy burden of showing the voluntariness of the alleged consent. (People v Whitehurst, 25 NY2d 389, 391 [1969].) On a motion to suppress statements, the burden of proof is upon the People to prove admissibility beyond a reasonable doubt. (People v Huntley, 15 NY2d 72, 78 [1965].)
In the instant case, Criminal Term properly suppressed the statement given by the defendant in his apartment on the grounds that the police officers should have obtained a warrant under Payton v New York (445 US 573). There was no reasonable explanation for the failure to obtain a warrant. Under existing law, an arrest warrant cannot be issued until an accusatory instrument has been filed (CPL art 120). Once an accusatory instrument has been filed a defendant may not be questioned in the absence of counsel. (People v Samuels, 49 NY2d 218 [1980]; People v Settles, 46 NY2d 154 [1978].) Quite possibly, the detectives may have felt it more expedient to arrest the defendant summarily, rather than seek a warrant, in light of the restrictions on questioning.
There was no significant intervening event between the defendant’s initial statement, found by Criminal Term to be the result of his unlawful arrest, and the written statement which is the subject of this appeal.