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 physical evidence, and to dismiss the indictment, with the following memorandum, with which Eiber, J., concurs. Although I agree with my colleagues that the police had probable cause to *518arrest the defendant, I do not agree that the People met their burden of proving that the defendant voluntarily consented to the subsequent search of the automobile. Whether consent is voluntary or "only a yielding to overbearing official pressure” must be determined from the surrounding circumstances (see, People v Gonzalez, 39 NY2d 122, 128). The hearing record reveals that the defendant was arrested by four police officers at his girlfriend’s apartment, searched, handcuffed, and detained, while the police searched the apartment. The defendant was then placed in a patrol car and, with all four officers present, was asked to consent to a search of the automobile. The People offered no evidence that the defendant was advised of his right to refuse to consent to the search. Based on these factors, I find that the defendant’s apparent consent was merely a capitulation to police authority, rather than a voluntary act (see, People v Gonzalez, supra; People v Flores, 181 AD2d 570; People v McFadden, 179 AD2d 1003).
Furthermore, while issues of credibility are primarily for the hearing court, I believe that here the fact findings of the hearing court are "so plainly unjustified by the evidence that the interests of justice necessitate their nullification” (People v Garafolo, 44 AD2d 86, 88; see also, People v Lewis, 195 AD2d 523; Matter of Carl W., 174 AD2d 678; People v Miret-Gonzalez, 159 AD2d 647). I conclude, therefore, that the warrantless search of the automobile was improper, and accordingly, would reverse the defendant’s conviction, grant that branch of his pretrial motion which was to suppress the evidence found in the automobile, and to dismiss the indictment.