Opinion
May 12, 1986
Appeal from the Supreme Court, Queens County (Naro, J.).
Judgment affirmed.
The defendant asserts that his warrantless arrest was illegal because it was based on information supplied by informants whose reliability was unproven. This contention is not disputed by the People and is unquestionably correct (see, People v Johnson, 66 N.Y.2d 398).
The People argue, however, that certain incriminating statements made by the defendant after his arrest were nevertheless properly admitted into evidence since the taint caused by the illegal arrest had dissipated by the time the defendant made such statements. We agree.
A review of the record reveals that the defendant first spoke to police at 1:30 or 2:00 P.M., approximately 4 to 6 hours after his arrest, which had occurred at 8:00, or possibly as late as 9:30 that morning. More importantly, the defendant's first statement to police came only after a codefendant, who had been arrested at a different time and place, made an independent statement to police which implicated the defendant in the homicide. Thus, any taint caused by the illegal arrest was fully dissipated before the defendant made any statements to the police (see, People v Mas, 110 A.D.2d 915, 916; People v Matos, 93 A.D.2d 772; People v Emrick, 89 A.D.2d 787, 788; cf. People v Gordon, 87 A.D.2d 636).
The defendant also contends that he was arrested at his home in violation of the rule of Payton v New York ( 445 U.S. 573). We disagree. The evidence in the record establishes that the police entered into the defendant's home with the consent of his mother. Consent can be established by conduct as well as by words (see, People v Abrams, 95 A.D.2d 155, 157; United States v Griffin, 530 F.2d 739), and the defendant's mother's conduct in stepping aside from the door to admit the officers is enough to establish consent (see, People v Taylor, 111 A.D.2d 520). Moreover, even if there were a Payton violation in this case, for the reasons addressed in connection with the illegal arrest the resulting taint would have been fully attenuated by the time the defendant made his statements (see also, People v Miller, 105 A.D.2d 1127; People v Graham, 90 A.D.2d 198).
We have examined the defendant's remaining contentions and find them to be without merit. Lazer, J.P., Bracken, Brown and Kooper, JJ., concur.