x999-2" type="dissent">Pigott, J. (dissenting).

What is clear from the record is that the police had several days to get an arrest warrant for the defendant and inexplicably failed to do so; and “exigency” does not cure that failure. It is for that reason that I respectfiilly dissent.

*449The day after the robbery, an employee of the restaurant provided a detailed description of defendant, a former employee, and he later identified defendant from a photo array. This provided sufficient probable cause to obtain a warrant for defendant’s arrest. Rather than immediately following up on this information or obtaining the warrant, however, no action was taken for the next three days. The police then obtained defendant’s address from his parole officer and, rather than applying for an arrest warrant at that time, five officers went to defendant’s apartment at 11 o’clock at night and began banging on the door.

According to one detective, she and another officer positioned themselves on the fire escape outside defendant’s apartment, weapons drawn, flashlights shining, and began knocking on the window, demanding that the occupants open the door. When Lenora Mitchell went to the door and opened it, she was visibly shaken. Because Mitchell was unable to answer the officers’ questions immediately, they entered the apartment “to see if there was some kind of life threatening situation.”

In Payton v New York, the United States Supreme Court held that the Fourth Amendment “prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest” (445 US 573, 576 [1980]). One exception to that rule—the exigent circumstances exception—permits a warrantless entry into a suspect’s home “where certain urgent events occur that do not provide the police with sufficient time to obtain an arrest warrant” (Kamins, New York Search & Seizure § 3.04 [2] [b] [ii], at 3-32 [2009], citing People v Knapp, 52 NY2d 689 [1981]).

The majority concludes that there is record support for the conclusion by the lower courts that exigent circumstances justified the warrantless entry, pointing to the “record . . . findings” that “the police had strong reason to believe that defendant was inside his apartment and that they only entered [it] after Mitchell opened the door” and the police observed her condition (majority op at 446). In the majority’s view, this somehow justified their conduct. However, the real issue is “could the police, as required by the Fourth Amendment and legions of cases, have obtained a warrant prior to going to defendant’s apartment when they clearly intended to effect an arrest?” In my view, they could have, and should have, and because there was certainly no record support for the conclusion that the police were faced with an exigency other than that which they created, the warrantless entry constituted a clear Payton violation.

*450In making a determination as to whether circumstances exist justifying a warrantless arrest of a defendant in his home, the courts may consider the gravity of the crime, the defendant’s possession of and willingness to use a weapon, and the likelihood of an escape attempt (see e.g. People v Mealer, 57 NY2d 214, 219 [1982], cert denied 460 US 1024 [1983]). Other factors courts may consider include whether there is a reliable basis to believe that the defendant is on the premises, whether there is probable cause to believe that the defendant committed the crime, and the time of day of the police entry and whether the entry was peaceful in nature (Kamins, New York Search & Seizure § 3.04 [2] [b] [ii], at 3-33—3-34; see Dorman v United States, 435 F2d 385 [DC Cir 1970]). But cases addressing the issue of the warrantless arrest of a defendant in his home are in the context of the necessity for prompt action by the police such as found in Mealerand Dorman (see People v Hill, 70 AD3d 1487 [4th Dept 2010] [warrantless entry justified by exigent circumstances where victim, whose head was bleeding, was found near the crime scene, and police had reason to believe defendant was inside apartment with claw hammer]; People v Garcia, 27 AD3d 307 [1st Dept 2006], lv denied 6 NY3d 894 [2006] [warrantless entry proper where police were responding to a violent dispute and saw from a common hallway a man inside apartment with a gun]; People v Mason, 248 AD2d 751 [3d Dept 1998] [exigent circumstances present where police arrived at the scene shortly after the incident and suspected that the defendant committed a burglary]; People Jones, 134 AD2d 451 [2d Dept 1987], lv denied 70 NY2d 1007 [1988] [warrantless entry justified by exigent circumstances where police were led to the scene within minutes of the crime, where defendant had committed the violent offenses of sodomy and sexual abuse at gunpoint]).

It is only if one blindly applies the Mealer/Dorman factors without first considering facts leading up to the eventual arrest—that the police had probable cause to arrest defendant and at least three days to get a warrant—that one could conclude that the suppression court and the Appellate Division properly upheld the warrantless entry into defendant’s home. There is no evidence that the police faced circumstances where they had to act quickly to arrest defendant (see People v Bloom, 241 AD2d 975 [4th Dept 1997], lv denied 90 NY2d 938 [1997] [record did not support suppression court’s determination that exigent circumstances justified the failure of the police to obtain a warrant where the police were not in pursuit of defendant, *451the robbery had occurred 21 hours earlier and there was no indication that defendant was aware of the police presence and therefore was not likely to escape or destroy evidence]; People v Vennor, 176 AD2d 1217 [4th Dept 1991]; People v Martinez, 160 AD2d 351 [1st Dept 1990]). Nor was there testimony by the officers that it would have been burdensome for them to obtain a warrant (see People v Ramos, 206 AD2d 260 [1st Dept 1994] [People failed to establish that the warrantless entry by police officers was justified where there was no evidence that officers were in pursuit of a fleeing felon or that defendant was likely to destroy the money he had received or the drugs he had been selling, nor was there any testimony that it would have been burdensome for the officers to obtain a warrant]).

Defendant makes the further argument, citing People v Levan (62 NY2d 139 [1984]), that the police may not create the exigency. Whether or not the police created such an exigency is a question of fact to be determined by the suppression court; and here the record evidence seems clear that any exigency was the result of police conduct.

As to the post-arrest statements, I note that the Appellate Division found no need to address the issue of whether they were sufficiently attenuated from the illegal entry in the apartment, primarily because the Appellate Division concluded that the warrantless entry was proper. Therefore, this matter should be remanded to the Appellate Division to address defendant’s post-arrest statements and whether they were sufficiently attenuated from the warrantless entry.

Judges Graffeo, Read and Smith concur with Judge Ciparick; Judge Pigott dissents in a separate opinion in which Judge Jones concurs; Chief Judge Lippman taking no part.

Order affirmed.

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