¶1dissents in a memorandum as follows: The majority would mandate yet another undue burden on the criminal justice system. (Cf., People v Rivera, 144 AD2d 258, 261 [dissent]; People v Mosley, 136 AD2d 500, 501 [dissent].)
¶2While the People consent to a Dunaway hearing (Dunaway v New York, 442 US 200), this court is not relieved from performing its judicial function. (See, People v Berrios, 28 NY2d 361, 366-367; People v Lewis, 26 NY2d 547.)
¶3Dunaway (supra)determined that custodial questioning on less than probable cause for arrest was violative of the Fourth Amendment, so the question becomes one of whether there was proper police conduct. In the case at bar, New York City Housing Authority detectives went to the Baruch Housing Project, on the lower east side, to arrest the defendant and to execute a "no-knock” search warrant seeking a machine gun and a rifle. He was convicted after a jury trial of two counts of criminal possession of a weapon in the third degree and sentenced as a violent predicate felony offender.
¶4Although a Huntley hearing was held, a knowledgeable Judge denied the motion for a Dunawayhearing.
¶5This court, by its ruling herein, would mandate a Dunawayhearing in all situations where a defendant simply claims that there has been no probable cause for his arrest. In this case, the defendant was observed several times going into the apartment which was the subject of the warrant, and he has admitted that he had carried the machine gun into the apartment in question.