
    The People of the State of New York, Appellant, v Larry Benthall, Respondent.
    Argued April 26, 1985;
    decided May 30, 1985
    
      APPEARANCES OF COUNSEL
    
      Robert M. Morgenthau, District Attorney (Ronald G. Blum and Robert M. Pitler of counsel), for appellant.
    
      Philip L. Tomich for respondent.
   OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed. The finding of the courts below that the statements in question were not sufficiently attenuated from the initial unlawful search has support in the record and thus presents a mixed question of law and fact beyond our review (see, People v Van Luven, 64 NY2d 625, 627). In addition, while the People contend that the police officers’ good faith should have been taken into account in determining the legality of this pr e-Payton search (Payton v New York, 445 US 573), there was no factual basis for such a conclusion.

Chief Judge Wachtler and Judges Jasen, Meyer, Simons and Kaye concur; Judges Alexander and Titone taking no part.

Order affirmed in a memorandum.  