dissents and votes to reverse the judgment appealed from, on the law and the facts, to grant that branch of the defendant’s motion which was to suppress his statements to law enforcement officials, and to order a new trial, with the following memorandum, in which Brown, J., concurs: The suppression hearing record establishes that police detectives, who drove by the defendant’s home hoping to find him outside, planned for three days to arrest the defendant as an accomplice to a shooting murder and attempted robbery. However, rather than obtain a warrant, for which there was sufficient basis, four detectives went to the defendant’s home at 8:00 a.m. on a Sunday morning to make a warrantless arrest. There is no claim that exigent circumstances justified entry into the defendant’s dwelling (see, Payton v New York, *710445 US 573), which was located on the otherwise unoccupied second floor of a three-story, three-family brownstone building.
The landlady, who admitted the detectives into the ground floor of the building, not through the front door but through her apartment, testified at the suppression hearing that when she opened her door to their knock, the detectives had their guns drawn. She also testified that she permitted their entry because she thought she "had to”, and that, while two detectives proceeded up an inside staircase to the second floor, the others remained downstairs, guarding the front and rear doors with "the revolver in their hands”.
The arresting detective testified at the suppression hearing that no guns were drawn at any time while they were at the premises, notwithstanding that, several days before, a shootout took place between police and certain individuals, two of whom were involved in the murder and attempted robbery for which the defendant was being arrested. He testified further that the defendant, wearing pajamas, voluntarily came into the hall and invited the detectives to come inside while he dressed and after he had been asked to accompany them to the precinct for questioning. Evidence produced through the defendant and his wife, however, indicates that the detectives, after knocking at the defendant’s door, entered the apartment, uninvited and with guns drawn, and that the defendant awoke on that Sunday morning to find armed detectives at his bedside telling him to "step outside”.
I recognize that determinations by a hearing court as to the credibility of witnesses are not to be lightly disturbed (see, People v Armstead, 98 AD2d 726). However we are not obligated to credit testimony which "has all [the] appearances of having been patently tailored to nullify constitutional objections. In evaluating testimony we should not discard common sense and common knowledge” (People v Garafolo, 44 AD2d 86, 88). Common sense tells me that police, who apparently went out of their way not to get a warrant, would not under any circumstance treat the arrest of an individual for murder as if it were an invitation to the arrestee to attend a social gathering. Indeed, from the hour and day that the arrest took place and from the posting of guards at all exits to the building in which the defendant resided, it is obvious that they did not. In my view, the testimony of the police detective was tailored to nullify the violation of the Payton rule (Payton v New York, supra), of which the arresting detectives were obviously well aware. It was error for the hearing court to credit the People’s witness.
*711Apart from the question of whether the “consent” of the landlady to police entry into the building was nothing more than submission to their authority, and apart from the question of whether the landlady had the requisite authority (see, People v Cosme, 48 NY2d 286) to consent to police entry into the hallway on the second floor, which hallway may be considered part of the defendant’s home (see, People v Lott, 102 AD2d 506; cf., People v McCurdy, 86 AD2d 493), the People have, in my view, failed to sustain their heavy burden (see, People v Gonzalez, 39 NY2d 122) of establishing that the defendant voluntarily stepped into the hallway or that either he or his wife consented to the physical entry by police through the door of their apartment (see, People v Levan, 62 NY2d 139). I conclude that defendant’s arrest was unlawful (Payton v New York, supra) and that, therefore, the defendant’s statements should have been suppressed as a tainted product of it (see, Dunaway v New York, 442 US 200).