People v. Pollotta 79 A.D.2d 852

Judgment unanimously affirmed. Memorandum: Defendant failed to preserve for review the contention that his admissions made after the police arrested him in his home without a warrant should be suppressed pursuant to Payton v New York (445 US 573; see People v Martin, 50 NY2d 1029; People v Booker, 49 NY2d 989). Even if we were to find that the Payton issue had been properly preserved, we would concur with the First and Third Departments that Payton should not be applied retroactively (People v Graham, 76 AD2d 228; People v Benitez, 76 AD2d 196, 199, n 2). The question of probable cause to arrest was raised in the suppression hearing; however, the record supports the trial court’s finding of probable cause to arrest for assault. One of the arresting officers had talked with an eye witness to the beating and the other had been given information concerning defendant’s complicity in the assault by a detective who had interviewed the eyewitness. We find no reason to comment on the other points raised on appeal. (Appeal from judgment of Monroe County Court—murder,. second degree, and other charges.) Present—Cardamone, J. P., Hancock, Jr., Schnepp, Doerr and Moule, JJ.