(dissenting). I believe that counsel was ineffective in his failure to move to suppress defendant’s statements, made after an illegal arrest. (Brown v Illinois, 442 US 590 [1975]; Dunaway v New York, 442 US 200 [1979]; Payton v New York, 445 US 573 [1980].) I would, therefore, continue to hold in abeyance the March 11, 1985 judgment of conviction for murder, and remand for a suppression hearing to determine whether there was probable cause for the defendant’s arrest and whether his statements should be suppressed.
The defendant was convicted for the July 18, 1984 shooting death of Wilson Cabrera. Based upon conversations with a prostitute that on July 21, 1984 she had seen the defendant in possession of a loaded firearm at the brothel where he worked and lived, the police obtained a warrant for the search of the defendant and of his basement apartment. Although no weapon or contraband was found, the defendant was arrested. While in custody he confessed to the murder. Following his conviction he moved pursuant to CPL 440.10 to vacate the conviction on the ground that he had been denied the effective assistance of counsel in that his counsel failed to raise issues concerning the legality of his arrest. We reversed the trial court’s denial of the motion without a hearing and granted *251the motion to the extent of remanding the matter for an evidentiary hearing. In doing so this court stated, "it is not clear from the record whether defense counsel’s failure to raise the issue of the legality of defendant’s arrest was due to ineffectiveness of counsel or trial strategy (People v Brown, 45 NY2d 852, 854 [1978]).” (People v Garcia, 137 AD2d 402, 406 [1988].)
The defendant’s trial counsel was the sole witness at an April 29, 1988 hearing held upon remand from this court. This testimony does not support the conclusion reached by the motion court that counsel’s failure to challenge the legality of the defendant’s arrest was due to trial strategy.
The standard to be applied in determining whether a defendant has been denied the right to effective assistance of counsel (US Const 6th Amend; NY Const, art I, §6) was articulated by the United States Supreme Court in Strickland v Washington (466 US 668 [1984]) and by the New York Court of Appeals in People v Baldi (54 NY2d 137 [1981]). These decisions concluded that a defendant’s Federal and State rights to effective representation have been met when (1) the evidence, the law and the circumstances of a particular case, viewed in totality, reveal that defense counsel "provided meaningful representation” (People v Baldi, supra, at 147), and (2) the claimed errors of counsel did not prejudice the defendant, that is, that no reasonable probability exists that the outcome of the proceedings was affected by counsel’s errors. (Strickland v Washington, supra, at 694; see also, People v Ferguson, 114 AD2d 226, 229-230 [1st Dept 1986].) Moreover, when, as here, the defendant’s claim of ineffective assistance of trial counsel is based predominantly on counsel’s failure to seek a pretrial hearing, the defendant must demonstrate the absence of strategic or other legitimate explanation for counsel’s failure to pursue that "colorable” claim. (People v Rivera, 71 NY2d 705, 709 [1988]; People v Brown, supra, at 854.)
Clearly, under the facts herein, where the defendant’s indictment and conviction rest primarily upon statements by him, there is a "reasonable probability” that but for counsel’s failure to move to suppress those statements upon the basis of the illegality of the arrest, the results of the proceedings would have been different. (Strickland v Washington, supra, 466 US, at 694; People v Garcia, supra, 137 AD2d, at 405.)
While the remand court attributed trial counsel’s failure to *252challenge defendant’s arrest to a "tactical consideration”, there has been no adequate explanation as to what the defense tactic or strategy was. Nor was any other reasonable explanation offered why counsel, based on the facts as he then knew them, failed to assert the claim of illegal arrest, a claim which was thoroughly consistent with the claim of "police brutality” which he vigorously pursued.
Trial counsel testified at the April 29, 1988 hearing that he did not seek to suppress the defendant’s statements as fruits of an arrest without probable cause based upon his conversations with the defendant, with the defendant’s girlfriend and with the Assistant District Attorney assigned to the case. These conversations led him to conclude that there had been probable cause for the arrest. According to trial counsel, he believed that a prostitute had overheard the defendant bragging about having committed the homicide and had provided this information to the police. Counsel assumed that this prostitute was the same one who provided the police with information as to the gun, which information was the basis for the search warrant. This prostitute could not be located for Garcia’s trial.
Such a conclusion, based upon speculation as to what a prostitute may have told police, cannot be considered to be reasonable in light of the applicable law. (Brown v Illinois, 422 US 590 [1975], supra; Dunaway v New York, 442 US 200 [1979], supra; People v Johnson, 66 NY2d 398 [1985].) In all three of the above-cited cases, statements made after illegal arrests were suppressed.
In Brown v Illinois (supra), the defendant had been arrested without probable cause and made incriminating statements concerning a murder. The Supreme Court held that the giving of Miranda warnings did not automatically purge the taint of the illegal arrest by breaking the chain between the illegal arrest and the statements. The court ruled that in considering the connection between the arrest and the statements, the factors which should be considered included the time between the arrest and the confession, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. (422 US, at 603-604.)
In Dunaway v New York (supra), the defendant had been arrested without probable cause and subsequently made incriminating statements concerning an attempted robbery and murder. The Supreme Court reversed the conviction and *253suppressed the statements, holding that there was a causal connection between the arrest and the statement. The court also reiterated the conclusion reached in Brown v Illinois (supra) that the giving of Miranda warnings did not automatically purge the taint of an illegal arrest.
In People v Johnson (supra), the Court of Appeals ruled that the reliability of an informant whose information formed the basis for defendant’s arrest for murder had not been established. Therefore defendant’s arrest was not based on probable cause and was held unlawful, with his statements confessing to murder suppressed and a new trial ordered.
Here, when faced with a detention based upon a search warrant pursuant to which no fruits were recovered, defense counsel should have immediately perceived a "probable cause” issue.
Counsel’s outright rejection of any argument pursuant to Payton v New York (445 US 573 [1980], supra) was similarly unreasonable. There, the Supreme Court ruled that warrant-less arrests in a person’s home violated the Fourth Amendment of the US Constitution absent special circumstances. Counsel testified that he had information that even though the defendant also may have lived at two other addresses, he had a room at the brothel, had a key, showered at the brothel and stayed there three nights per week. Based upon these facts alone a valid argument could have been made that the defendant had standing to challenge his arrest in the bordello without an arrest warrant. (Payton v New York, supra; People v Lewis, 94 AD2d 44, 51 [1st Dept 1983] [physical evidence seized from the apartment of defendant’s cousin, which implicated defendant in a robbery, was ordered suppressed. Defendant was held to have a privacy interest in the apartment and had standing to contest the seizure of the items].)
At trial the defendant stated that he lived in a basement apartment at the brothel. His employer, the owner of the brothel, testified that the defendant was given a room to stay in and that on the day of his arrest the police let themselves in, rushed past her room and headed to the basement apartment where the defendant was staying. Even after this testimony counsel did not argue that the arrest was illegal and again did not challenge the arrest when during trial he unsuccessfully moved to reopen the Huntley hearing.
At the April 29th hearing, trial counsel stated that in preparation for trial he had either reviewed legal memoranda *254prepared by his legal assistant or read the decisions in Payton v New York (supra); Dunaway v New York (supra) and Brown v Illinois (422 US 590 [1975], supra), but at the hearing he could not recall the facts of these cases. Although given an opportunity to produce his case file in connection with the April 29 hearing, counsel never did so.
Even with respect to the defense claim that the confessions were physically coerced, trial counsel, who represented defendant during the six months prior to the pretrial hearing and trial, failed to view the defendant’s videotaped confession prior to the Huntley hearing pr to diligently pursue efforts to obtain the defendant’s medical records.
Recently, in People v Vauss (149 AD2d 924) the defendant’s conviction of criminal possession of stolen property, second degree, was unanimously reversed and a new trial ordered as a result of trial counsel’s failure to challenge the admissibility of statements made by the defendant to police in what appeared to be a violation of Payton v New York (supra). The Fourth Department held that the warrantless arrest of the defendant by police who broke into his motel room, and the critical nature of the evidence flowing from that arrest required that the statement be challenged, stating, "Defense counsel’s failure to address the Payton issue was a fatal deficiency rendering counsel’s representation ineffective and not meaningful” (at 924).
In the instant case, while counsel vigorously pursued the coercion and Sixth Amendment claims, principles of fundamental fairness and justice require that the People be put to their proof on those basic issues concerning the legality of the defendant’s arrest and consequent admissibility of his confessions. The People should have been held to the burden of establishing the reliability of the informant whose information provided the basis for the search warrant, and of establishing the grounds upon which the defendant was handcuffed in what may have been his home, without a warrant, beaten without provocation, arrested and taken to the police precinct and detained until he confessed.
Murphy, P. J., Sullivan and Rosenberger, JJ., concur with Ross, J.; Smith, J., dissents in a separate opinion.
Judgment, Supreme Court, New York County, rendered on March 11, 1985, and an order of said court entered on October 20,1988, affirmed.