Smith, J., concurs in a separate memorandum as follows: I concur fully in the decision to reverse the conviction and to suppress the statements made. I wish to emphasize the facts which require suppression of the statements.
In People v Harris (77 NY2d 434, 437), the Court of Appeals held that the "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.”
In People v Harris (supra) the police had probable cause to arrest the defendant for the murder of his girlfriend. They arrested him at his home without a warrant and thus violated Payton v New York (445 US 573 [1980]). Defendant then made three inculpatory statements, one in his apartment, a second one just an hour later at the precinct and a third videotaped statement at the precinct. The first and third statements were suppressed and the issue before the Court of Appeals was whether the second statement should be suppressed. That court ruled that the second statement should be suppressed "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” (supra, at 441).
Here, the defendant was arrested at his home without a warrant and without probable cause on December 20, 1984. He was taken to the police precinct, arriving about 2:55 p.m. He was questioned from about 4:00 to 5:00 p.m. with no Miranda warnings. He made an exculpatory statement. Prior *245to a second round of questioning, the defendant’s girlfriend, who had been brought to the station, told the police that the defendant had admitted a shooting to her, thus giving the police probable cause to make an arrest. About 11:00 p.m. the defendant made a second statement after defective Miranda warnings were given. Specifically, defendant was not told that an attorney would be provided to him free of charge if he did not have an attorney. The defendant admitted shooting at someone but said he missed the person. Around 4:20 a.m. defendant was given proper Miranda warnings. He again stated that he fired at a person but missed him.
In this case even though there was a time period between the second and third statements, the flagrancy of the police misconduct in arresting defendant without probable cause and in failing to give proper Miranda warnings requires suppression of all three statements.