
    The People of the State of New York, Respondent, v Bernard Harris, Appellant.
    Argued November 16, 1990;
    decided February 12, 1991
    
      POINTS OF COUNSEL
    
      Bernard Harris, pro se.
    
    
      Robert T. Johnson, District Attorney (Peter D. Coddington of counsel), for respondent.
    
      Ronald G. Blum, Barrington D. Parker, Jr., Debra Freeman and Marc J. Schoenfeld, amicus curiae.
    
   OPINION OF THE COURT

Simons, J.

This matter is before us on remand from the United States Supreme Court following reversal and reinstatement of the judgment against defendant (see, New York v Harris, 495 US —, 110 S Ct 1640, revg People v Harris, 72 NY2d 614). We must now determine whether evidence submitted in support of defendant’s conviction, though admissible under Federal standards, should be suppressed under our State constitutional provision prohibiting unlawful searches and seizures (see, NY Const, art I, § 12).

The challenged evidence consisted of statements defendant made to the police after they arrested him in his apartment for the murder of his girlfriend. The police had probable cause, developed during the five days between the crime and the arrest, but arrested defendant without a warrant in violation of the rule in Payton v New York (445 US 573). Defendant made an inculpatory statement in his apartment, another one hour later at the police station and a third statement on videotape. The first statement was suppressed as the product of the illegal arrest and the third was suppressed because it was involuntary. Those rulings are not challenged. The issue now before us relates to the second statement. Defendant claimed that it should be suppressed under the Federal and State Constitutions (see, US Const 4th Amend; NY Const, art I, § 12).

When we previously reviewed the question, we found the station house statement was tainted by the prior illegality and unredeemed by attenuation. Accordingly, we suppressed it on Fourth Amendment grounds (People v Harris, 72 NY2d 614, 620-624, supra). The holding represented our view of what the Federal Constitution required and was consistent with an earlier decision in this Court on the subject (see, People v Conyers, 68 NY2d 982; see also, United States v Johnson, 626 F2d 753, 759, affd 457 US 537; United States v George, 883 F2d 1407, 1416, n 8).

The Supreme Court subsequently granted certiorari and reversed (New York v Harris, 495 US —, 110 S Ct 1640, supra). It held that the police illegality was in the entry, not the arrest, and that exit from the apartment necessarily broke any causal connection between the wrong and the later statement. Inasmuch as the police had probable cause to arrest the defendant, the exclusionary rule did not bar use of his station house statement even though the warrantless arrest in defendant’s apartment violated the rule in Payton v New York (New York v Harris, 495 US —, —, 110 S Ct 1640, 1644-1645, supra). No attenuation was required, the Court held, because the deterrent value of suppressing this type of statement was minimal: "[i]t is doubtful * * * that the desire to secure a statement from a criminal suspect would motivate the police to violate Payton” (New York v Harris, supra, at —, at 1644).

Inasmuch as the Supreme Court ruled against defendant on his Federal claim, we are now obliged to consider on remand the other claim he advanced, whether the State Constitution requires suppression of the station house statement. We conclude that the Supreme Court’s rule does not adequately protect the search and seizure rights of citizens of New York. Accordingly, we hold that our State Constitution requires that statements obtained from an accused following a Payton violation must be suppressed unless the taint resulting from the violation has been attenuated.

Because the language of the Fourth Amendment of the United States Constitution and section 12 of article I of the New York State Constitution prohibiting unreasonable searches and seizures is identical, it may be assumed, as a general proposition, that the two provisions confer similar rights (see, People v P. J. Video, 68 NY2d 296, 304; People v Johnson, 66 NY2d 398, 406-407; People v Ponder, 54 NY2d 160, 165). Such consistency is desirable because it facilitates implementation of search and seizure rules. Nonetheless, the two documents do not present a monolithic legal code. Our federalist system of government necessarily provides a double source of protection and State courts, when asked to do so, are bound to apply their own Constitutions notwithstanding the holdings of the United States Supreme Court (see, People ex rel. Arcara v Cloud Books, 68 NY2d 553, 557, quoting People v Barber, 289 NY 378, 384). Sufficient reasons appearing, a State court may adopt a diiferent construction of a similar State provision unconstrained by a contrary Supreme Court interpretation of the Federal counterpart. The present case comes to us on remand to determine whether we should do so here.

We detailed some general rules governing independent State review in People v P. J. Video (68 NY2d 296, 301-302, supra) and have revisited the subject several times since (see, e.g., People v Torres, 74 NY2d 224, 228-230; People v Griminger, 71 NY2d 635, 638-639; People v Alvarez, 70 NY2d 375, 378-379; People ex rel. Arcara v Cloud Books, supra, at 557-558). Two different analyses are employed: an interpretive analysis which examines the language of the provisions and a noninterpretive analysis which "proceeds from a judicial perception of sound policy, justice and fundamental fairness” (People v P. J. Video, supra, at 303). In the present case, the language of the Fourth Amendment of the Federal Constitution and section 12 of article I of our own Constitution not only contain similar language but share a common history (see, People v P. J. Video, 68 NY2d 298, 304, n 4, supra; People v Johnson, 66 NY2d 398, 406, supra). If a distinction is to be made in what they require, therefore, it must rest on a noninterpretive analysis of the State provision in which the Court focuses not on the text of the clause but on matters peculiar to this State. In doing so, we have considered such factors as "any preexisting State statutory or common law defining the scope of the individual right in question; the history and traditions of the State in its protection of the individual right; any identification of the right in the State Constitution as being one of peculiar State or local concern; and any distinctive attitudes of the State citizenry toward the definition, scope or protection of the individual right.” (People v P. J. Video, supra, at 303.)

Employing this analysis in the past, we have delineated an independent body of search and seizure law under the State Constitution to govern citizen-police encounters when doing so best promotes " 'the protection of the individual rights of our citizens’ ” (People v P. J. Video, 68 NY2d 296, 304, supra, quoting People v Johnson, 66 NY2d 398, 407, supra; see, People v Torres, 74 NY2d 224, 228, supra). Whether this is a case requiring a special State rule to protect the constitutional rights of accuseds necessarily requires consideration of the consequences flowing from the police illegality and whether some deterrent is necessary to remove any incentive to the police to violate the law. It is not dispositive that defendant waived his Miranda rights before speaking. The interest in deterrence does not disappear just because defendant’s statement was voluntary or because he waived his right to counsel. Indeed, if the statement was involuntary there would never be need to consider the violation of the Search and Seizure Clause (see, e.g., Brown v Illinois, 422 US 590, 601-602; Dunaway v New York, 442 US 200, 216-217; Taylor v Alabama, 457 US 687, 690).

We turn, therefore, to the circumstances peculiar to New York and conclude that although attenuation may not be necessary to deter Payton violations under Federal law or in the Nation generally, the Supreme Court’s rule is not adequate to protect New York citizens from Payton violations because of our right to counsel rule.

The safeguards guaranteed by this State’s Right to Counsel Clause are unique (NY Const, art I, § 6). By constitutional and statutory interpretation, we have established a protective body of law in this area resting on concerns of due process, self-incrimination and the right to counsel provisions of the State Constitution which is substantially greater than that recognized by other State jurisdictions and "far more expansive than the Federal counterpart” (People v Bing, 76 NY2d 331, 338-339; People v Davis, 75 NY2d 517, 521; People v Hobson, 39 NY2d 479, 483-484; see also, 1 LaFave and Israel, Criminal Procedure § 6.4, at 468-469; and Galie, The Other Supreme Courts: Judicial Activism Among State Supreme Courts, 33 Syracuse L Rev 731, 764). The Court has described the New York rule as a "cherished principle”, rooted in this State’s prerevolutionary constitutional law and developed "independent of its Federal counterpart” (People v Settles, 46 NY2d 154, 160-161). The "highest degree of [judicial] vigilance” is required to "safeguard” it (see, People v Cunningham, 49 NY2d 203, 207). Manifestly, protection of the right to counsel has become a matter of singular concern in New York and it is appropriate that we consider the effect of Payton violations upon it.

The different views expressed by the Supreme Court and this Court in the case before us illustrate the distinctive Federal and State right to counsel rules and the concerns they engender. Under both Federal and State law, the right to counsel attaches once criminal proceedings have commenced (Kirby v Illinois, 406 US 682; People v Samuels, 49 NY2d 218). Under the Federal rule, however, criminal proceedings do not necessarily start when an arrest warrant is issued. Police may interrogate a suspect in the absence of a lawyer without violating his or her right to counsel even though the arrest is made pursuant to a warrant (see, United States v Pace, 833 F2d 1307, 1310-1312; United States v Reynolds, 762 F2d 489, 493; 1 LaFave and Israel, Criminal Procedure § 6.4 [e]). But in New York, criminal proceedings must be instituted before the police can obtain a warrant. Our Criminal Procedure Law provides that an arrest warrant may not issue until an "accusatory instrument” has been filed (CPL 120.20; and see, People v Blake, 35 NY2d 331, 339-340). Thus, in New York once an arrest warrant is authorized, criminal proceedings have begun, the indelible right to counsel attaches and police may not question a suspect in the absence of an attorney (People v Samuels, 49 NY2d 218, 221-222, supra; People v Settles, 46 NY2d 154, supra).

The practical effect of these rules is that little incentive exists for police to evade Payton in the hopes of securing a statement under Federal rules and, as the Supreme Court concluded, the incremental deterrent resulting from suppressing statements made after an illegal arrest in the home would be minimal. In New York, however, police are prohibited from questioning a suspect after an arrest pursuant to a warrant unless counsel is present. They have every reason to violate Payton, therefore, because doing so enables them to circumvent the accused’s indelible right to counsel. Indeed, the evidence indicated that the police were motivated by just such considerations in this case. Even though they had developed probable cause for the arrest early in their investigation, they did not secure a warrant but arrested defendant in his apartment, a procedure they knew was prohibited by their departmental rules, and then questioned him in the absence of an attorney (see, People v Harris, 72 NY2d 614, 622, supra). If the police had entered the apartment pursuant to a warrant, they could not have questioned defendant in the absence of counsel. They should not enjoy greater latitude simply because they neglected to obtain a warrant, as Payton requires, and entered the apartment illegally. It is this interplay between the right to counsel rules established by New York law and the State’s search and seizure provisions which provides a compelling reason for deviating from the Supreme Court’s determination in this case. We adhere to our earlier decision, therefore, and hold that statements obtained from an accused following an arrest made in violation of Payton are not admissible under the State Constitution if they are a product of the illegality.

Based upon the facts found by the courts below, we determine that the causal connection between the illegal arrest and defendant’s statement in the police station was not sufficiently attenuated from the Payton wrong because of the temporal proximity of the arrest and the statement, the absence of intervening circumstances and the purpose and flagrancy of the police misconduct (see, People v Conyers, 68 NY2d 982, supra; People v Johnson, 66 NY2d, supra, at 407; People v McGrath, 46 NY2d 12, 28-29). Inasmuch as the evidence of attenuation was insufficient as a matter of law, the station house statement must be suppressed under article I, § 12 of the New York Constitution (see, People v Harris, 72 NY2d 614, 620-623, supra).

Accordingly, on reargument following remand from the United States Supreme Court, the order of the Appellate Division should be reversed, defendant’s statement suppressed and a new trial ordered.

Titone, J.

(concurring). The first time this case was before the Court, I concurred in the suppression of defendant’s statement on constraint of People v Conyers (68 NY2d 982), but I argued that under the Fourth Amendment Brown v Illinois (422 US 590) attenuation principles were not applicable and that, accordingly, suppression was not required (72 NY2d 614, 625-630 [Titone, J., concurring]). Now that the United State Supreme Court has held that the United States Constitution does not, in fact, compel suppression (495 US —, 110 S Ct 1640) and the Court is urged to consider the issues under the New York State Constitution, I concur wholeheartedly in my colleagues’ conclusion that the special New York right to counsel rules provide sound support for a departure from Federal precedent and justify applying our own State attenuation analysis in cases involving Payton violations (Pay-ton v New York, 445 US 573).

Bellacosa, J.

(dissenting). The United States Supreme Court has ruled that the New York State Court of Appeals erred in reversing the murder conviction of defendant-appellant Harris (New York v Harris, 495 US —, 110 S Ct 1640, revg 72 NY2d 614 [Wachtler, Ch. J., and Bellacosa, J., dissenting]). Undeterred, the same majority of this Court creates a new theory upon which to again reverse and suppress a station house confession, deciding that it is mandated by State constitutional considerations. We strongly disagree and would affirm the conviction.

The majority’s dogged choice in this case is not compelled or supported by existing Federal or State precedents or principles. Rather, to accomplish its result, the majority:

(1) rejects the analysis, wisdom and experience of the United States Supreme Court with respect to its Payton (Payton v New York, 445 US 573) rule;

(2) rejects the undisturbed attenuation fact findings of both of our own lower courts in violation of our own State constitutional review limitations;

(3) rests its result on a significantly expanded State right to counsel concept, injected into this case for the first time after all appeals have been exhausted, including to the United States Supreme Court;

(4) converts a pure Fourth Amendment search and seizure dwelling protection case into a theoretical right to counsel construct;

(5) justifies its yonder reach as necessitated by a perceived enhancement of deterrence policy;

(6) bypasses this Court’s long-standing "issue preservation” principles; and

(7) unsettles law principles in all of the above areas and, most disconcertingly, adds the implication that the police are legally and constitutionally required to commence a criminal proceeding as soon as they believe they have probable cause.

The choice to discount and disregard all these jurisprudential policies and principles in this unworthy case is astonishing and is effected against a most unusual evidentiary and procedural backdrop.

This case is not about the police invading the defendant’s dwelling. They had legal and constitutional probable cause to believe that defendant had committed a heinous murder and they did what society expects its law enforcement officials to do: they set out to locate and apprehend the suspected murderer. They knocked on his apartment door, they identified themselves, they asked to be let in, defendant let them in, sipped wine and engaged them in conversation after being given warnings on his rights. He even told them how glad he was that they came for him. He then confessed to slitting his girlfriend’s throat, nearly decapitating her, because he thought she was a bad mother. That confession, made in his apartment, was suppressed, was not used in his trial, and is not at issue here. An hour later at the precinct and after further warnings, advisements and personal waiver of rights, defendant again voluntarily confessed.

The legality of the second confession, used in evidence at his trial (nonjury and without defense counsel, at defendant’s express request), is the only question again before this Court under the standard mandate from the United States Supreme Court for "proceedings * * * in conformity with the judgment of this [United States Supreme] Court above stated, as accord with right and justice, and the Constitution and Laws of the United States.” The Supreme Court mandate directs this Court of Appeals to proceed "not inconsistently] with the opinion of this [United States Supreme] Court.” We believe the majority today proceeds "inconsistently” and not "in conformity” with that part of the United States Supreme Court’s opinion declaring the law of the land on its Payton principle and on the sweep of the deterrent aspect of the exclusionary rule flowing from that principle. No properly or timely presented or relevant "local” or "parochial” interest of New York justifies that affront.

There can be little dispute that the Fourth Amendment of the Federal Constitution and article I, § 12 of the New York • State Constitution "contain similar language [and] share a common history” (majority opn, at 438). Inasmuch as the majority suggests that they appear to confer similar protections, we believe they should be consistently construed in this case. Nevertheless, the majority declares its deviation from the United States Supreme Court decision, and clings to its rejected prior result, by resorting to a deus ex machina — a newly fashioned Payton/Samuels right to counsel (see, Payton v New York, 445 US 573, supra; People v Samuels, 49 NY2d 218). Most assuredly, that is a novel and significantly expanded State constitutional hybrid.

A fundamental flaw in the majority’s approach is that this case has not been in its six-year history — up to today — about any kind of right to counsel. All the courts so far have struggled with a pure Fourth Amendment Payton right: protection against warrantless arrests in a dwelling. Indeed, the Court’s prior majority opinion (People v Harris, 72 NY2d 614, 620, supra) acknowledged that the precise constitutional infraction was a Payton violation, not the infringement of some artificially triggered right to counsel.

The precise holding of People v Samuels (49 NY2d 218, supra) is that a defendant’s right to counsel attaches when a felony complaint is filed and an arrest warrant issues, and that the right cannot thereafter be waived in the absence of counsel. Defendant Harris was arrested without a warrant and with no felony complaint filed and with no criminal proceeding having been begun. The Samuels counsel rule is therefore on its face not applicable. Yet the majority "deems” the warrant prerequisite to have been met, activating the right to counsel — a clear fictional extension of the rule itself. The precise Samuels holding has never been so extended even in a true right to counsel case. Moreover, the majority makes this policy expansion in the immediate wake of this Court’s recent contraction of the right to counsel protection propounded in a true right to counsel case (People v Bing, 76 NY2d 331). Then, Bing is incongruously cited in support of New York’s "peculiar” (majority opn, at 439) right to counsel tradition. As dissenters here, we remain equal, true, steadfast and proud participants in the appropriate New York right to counsel tradition, but we are completely baffled by the majority’s peculiar importation of that tradition into this Payton case.

The particular New York right to counsel angle is claimed to be needed to serve some newly perceived special deterrent objective, directed against the police. Keeping in mind, however, that the conduct to be deterred is that which violates Payton’s dwelling sanctuary protection, we fail to see how that objective is served by suppressing the subsequent precinct confession. It is speculative that the police intended to violate defendant’s Payton right and even more speculative that they intended to evade any of his New York counsel rights. Nor is there any evidence that they "exploited”, in the legal or actual sense of that word, the Payton dwelling infraction in the subsequent precinct interrogation. The police were under no constitutional or legal obligation to obtain a warrant and thus commence the criminal proceeding at a particular time which some court might thereafter determine to be the precise moment of truth. Many entirely legal and potentially unfolding courses of action were still open to the police to properly continue their investigation and acquisition of admissible evidence (e.g., spontaneous, consensual, nonprotected, attenuated or even "lucky” encounters and acquisitions — fact matters only definitively resolved months and years later by reflective judicial adjudication) (compare, People v Davis, 75 NY2d 517). The record shows that the police intended to locate the defendant and does not show that they intended to arrest him illegally. Indeed, there is evidence and proper inference that they intended to arrest him only after detérmining his location and then getting a warrant, if other legal means did not present themselves.

We therefore see no reason to stretch precedent and twist logic in order to rescue this defendant from a United States Supreme Court decision against him. As the United States Supreme Court itself explained in rejecting an argument that suppression here would deter Payton violations:

"[T]he principal incentive to obey Payton still obtains: the police know that a warrantless entry will lead to the suppression of any evidence found or statements taken inside the home. If we did suppress statements like Harris’, moreover, the incremental deterrent value would be minimal. Given that the police have probable cause to arrest a suspect in Harris’ position, they need not violate Payton in order to interrogate the suspect. It is doubtful therefore that the desire to secure a statement from a criminal suspect would motivate the police to violate Payton. As a result, suppressing a station-house statement obtained after a Payton violation will have little effect on the officers’ actions, one way or another.” (New York v Harris, 495 US, at —, 110 S Ct, supra, at 1644.)

This analysis makes common sense and reflects a realistic judicial understanding of the dynamic acted out on the hard streets by the participants in such matters, without sacrificing any constitutional values, including our own State’s.

The majority rejects that superior perspective and then adds insult to the injury by conclusorily relieving the Court of Appeals of its long-standing obligation to respect and abide by our own lower court undisturbed factual findings. The suppression Justice who heard the police witnesses determined that there was "a sufficient attenuation; the [r]ights were given again” and that the statement in the station house "was independently given by [defendant] voluntarily”. Four Justices constituting the majority at the Appellate Division voted to affirm defendant’s conviction and expressly agreed with the Trial Justice that there was attenuation, concluding that "the police station statement was 'sufficiently an act of free will to purge the primary taint of the unlawful invasion’ ” (124 AD2d 472 [cite omitted]) and that "any 'taint’ resulting from an illegal arrest was removed by the lapse of time between the statements and the rereading of the Miranda warnings” (124 AD2d, supra, at 475). The record evidence supports and confirms this key chain of attenuating events: the change of scene from a "protected” dwelling to an "unprotected” precinct; intervening passage of about one hour’s time; and renewed warnings by the police authorities and new waivers by defendant.

There is no justification for conclusorily sweeping aside these facts and rulings as legally insignificant. Nor should consideration of the full evidentiary picture of this case be foreclosed in this unusual remand/reargument procedural posture. All the evidence must be freshly relevant and independently pertinent to the issues as the majority has now cast them because they concededly turn anew on "a judicial perception of sound policy, justice and fundamental fairness” (People v P. J. Video, 68 NY2d 296, 303, cert denied 479 US 1091). Thus, we cannot comprehend the majority’s determination, apparently made as a matter of law and of "sound policy, justice and fundamental fairness”, to suppress a precinct confession that all the lower State courts have found to be attenuated from the Payton violation and that the United States Supreme Court has determined to be admissible because attenuation is irrelevant.

The majority’s rejection of the undisturbed attenuation findings is strikingly inconsistent with their insistence that the Court is bound by a very shaky determination that the defendant had not consented to the police entry into his apartment (as the police then believed, as two fact-reviewing Appellate Justices found, and as two other fact-reviewing Justices found too close to call). The majority cannot have it both ways. Intellectual and analytical discipline demand some consistency at least in this respect to avoid breeding disrespect for the decision-making process. Why should law enforcement officials be "deterred” by a court ruling that unfairly brands them in belated hindsight as flagrant wrongdoers and circumventers of the law, and why should they respect its edict which simultaneously rejects the adjudicative work of all the other courts in this very case in these circumstances? It is the epitome of institutional egocentricity, a kind of Copernican view of the judicial universe, to reject (1) the United States Supreme Court analysis on a rule it first established (Payton v New York, 445 US 573, supra); (2) the Supreme Court’s latest interpretation of the deterrence and application breadth of that rule (New York v Harris, 495 US —, 110 S Ct 1640, supra); and (3) the undisturbed factual findings of both our own lower courts (five Justices in all) on the dispositive attenuation factual issue.

Legally and literally, today’s holding metamorphosizes the Payton private dwelling sanctuary into the public precinct house, and then further transforms the jurisprudence by converting Payton’s Fourth Amendment dwelling right into a fused Fifth and Sixth Amendments personal right to counsel —State version. The history of NY Constitution, article I, § 12 and its proud right to counsel tradition, as applied in a Payton context, do not support leapfrogging beyond the United States Supreme Court’s decision in this procedurally convoluted case. The majority effectively relegates that Supreme Court’s work to an academic judicial exercise with no consequence for the real outcome of this case. One has to believe that the United States Supreme Court has a continuing interest in the sweep and application of its nationally propounded Payton rule and interpretation, for why else would it have granted certiorari, heard argument, reversed the case on the merits, issued its definitive opinion of the Court, and remanded to this Court for proceedings "not inconsistent with [its] opinion”?

Inasmuch as we cannot concur in the majority’s bold latest chapter to this case, we vote to affirm the order of the Appellate Division affirming the judgment of conviction for murder, as reinstated by the United States Supreme Court.

Judges Kaye, Alexander, Titone and Hancock, Jr., concur with Judge Simons; Judge Titone concurs in a separate opinion; Judge Bellacosa dissents and votes to affirm in another opinion in which Chief Judge Wachtler concurs.

Upon reargument, following remand by the Supreme Court of the United States, order reversed, etc. 
      
      . The dissent contends that the police intended merely to locate defendant and then obtain a warrant, if necessary (dissenting opn, at 445). The trial court found as a fact that the three officers went to the apartment to take defendant into custody, that with guns drawn they blocked the exits from the apartment, knocked on the door and, when defendant answered the knock, entered the apartment and arrested him. It concluded on this evidence that "[n]o more clear violation” of Payton could be established. Three reviewing courts have accepted that finding: the Appellate Division, which left Supreme Court’s factual findings undisturbed (124 AD2d 472); this Court (72 NY2d 614), and the United States Supreme Court (495 US —, —, 110 S Ct 1640, 1642). Indeed, the statement obtained in the apartment, although voluntary for Fifth Amendment purposes, was suppressed because the entry was unlawful and the parties no longer challenge that ruling.
     
      
      . The dissent takes the view that the result on remand is controlled by the Supreme Court’s ruling (see, dissenting opn, at 443). Quite the contrary is true. Defendant sought relief under both the State and Federal Constitutions. Relief on Federal grounds has now been denied by the Supreme Court. We have no choice, therefore, except to address and resolve the State claim because the conduct complained of must also satisfy our State Constitution (see, People ex rel. Arcara v Cloud Books, 68 NY2d 553, 555-556; People v Alvarez, 70 NY2d 375, 378). This would be so whether we had determined that relief is not available under the United States Constitution in the first instance (see, e.g., People v Cintron, 75 NY2d 249; Cooper v Morin, 49 NY2d 69) or on remand from the Supreme Court after it has decided the issue, as in this case (see, e.g., People v Alvarez, supra; People ex rel. Arcara v Cloud Books, supra; People v Class, 67 NY2d 431).
     
      
      . The dissenters contend that the Court is bound by the finding of attenuation below (dissenting opn, at 446).
      This Court may not find facts, but it is within our power to review the facts as found by the courts below to determine whether they are sufficient under the applicable legal standard. This familiar rule was stated by the dissent in the first appeal. When arguing unsuccessfully that the entry was consensual, the dissenters stated "this question is reviewable by us. Both lower courts held without analysis that the first confession was suppressible. However, simply put, when using the correct legal standard together with the facts found by those courts this conclusion is without basis (Cohen and Karger, Powers of the New York Court of Appeals §§ 114, 115 [rev ed])”. (People v Harris, 72 NY2d 614, 628 [Wachtler, Ch. J., dissenting].)
     