
    The People of the State of New York, Respondent, v. Charles McCarthy, Michael Kancza and Kevin Collins, Appellants.
    Submitted April 1, 1964;
    decided May 7, 1964.
    
      
      Salvatore Piazza for appellants.
    I. Illegally seized evidence was admitted in violation of defendants’ constitutional rights. (Brinegar v. United States, 338 U. S. 160; People v. Loria, 10 N Y 2d 368; People v. Defore, 242 N. Y. 13 ; Mapp v. Ohio, 367 U. S. 643; People v. Moore, 11 N Y .2d 271; McDonald v. United States, 335 U. S. 451; People v. Richter, 265 App. Div. 767; People v. Brown, 32 Misc 2d 846; Henry v. United States, 361 U. S. 98; People v. Rodriguez, 11 N Y 2d 279; People v. Caliente, 12 N Y 2d 89; People v. Piazza, 15 A D 2d 503.) II. Postarraignment statements attributed to McCarthy and Kancza after both had retained counsel were improperly received in evidence. (People v. Meyer, 11 N Y 2d 162; People v. Waterman, 9 N Y 2d 561; People v. Di Biasi, 7 N Y 2d 544; People v. Robinson, 16 A D 2d 184, 13 N Y 2d 296; People v. Davis, 13 N Y 2d 690; People v. Berry, 16 A D 2d 790; People v. Boodie, 16 A D 2d 904.) III. Secondary documentary evidence was admitted without proper foundation. (People v. Burgess, 244 N. Y. 472; Kearney v. Mayor of City of N. Y., 92 N. Y. 617.) IV. Substantial error and prejudicial abuse of discretion were committed by the court in permitting a prosecution witness to withdraw from the witness stand to be counseled by the prosecutor. (People v. Becker, 210 N. Y. 274; People v. Wolf, 183 N. Y. 464; People v. Herman, 255 App. Div. 314.) V. The guilt of defendants, including proof of the corpus of the crime, was not proved beyond a reasonable doubt as a matter of law. (People v. Krauss, 192 App. Div. 403; People v. Nentarz, 239 App. Div. 109; People v. Gillman, 161 App. Div. 920; People v. Troche, 9 Misc 2d 452; People v. Negrin, 24 Misc 2d 181; People v. Burlingame, 213 App. Div. 331; People v. Elmore, 277 N. Y. 397.)
    
      Edward S. Silver, District Attorney (Stanley M. Meyer of counsel), for respondent.
    I. The evidence presented in the court below was obtained in accord with accepted principles of law. (People v. Loria, 10 N Y 2d 368; People v. Wagman, 31 Misc 2d 505; Tobias Case, 1 N. Y. City H. Rec. 30; In re Philips, 4 N. Y. City H. Rec. 177; Harrison v. People, 50 N. Y. 518; People v. Spivak, 237 N. Y. 460; Haskins v. People, 16 N. Y. 344; People v. Montana, 131 Misc. 256, 223 App. Div. 878; People v. Berger, 142 Misc. 178; State v. McLennern, 82 Ore. 621; People v. Devore, 402 Ill. 336; Jones v. State, 83 Okla. Cr. 358; Griffith v. State, 31 Ala. App. 432; O’Neal v. State, 195 Ark. 357; Schultz v. Lainson, 234 Iowa 606; State v. Akers, 106 Mont. 43.) II. No evidence obtained in postarraignment statements was introduced at the trial. (Spano v. New York, 360 U. S. 315; People v. Meyer, 11 N Y 2d 162.) III. The best evidence rule was not violated regarding the admission of documentary evidence below. (Butler v. Mail & Express Pub. Co., 171 N. Y. 208; Mahaney v. Carr, 175 N. Y. 454; Jackson ex dem. Roosevelt v. Stackhouse, 1 Cow. 122; Rockline v. Richard, 251 N. Y. 321; Oregon S. S. Co. v. Otis, 100 N. Y. 446; Crossman v. Crossman, 95 N. Y. 145; Sarasohn v. Kamaiky, 193 N. Y. 203; Kearney v. Mayor of City of N. Y., 92 N. Y. 617; Mason v. Libbey, 90 N. Y. 683; Cole v. Canno, 168 App. Div. 178; Hoffman v. Lehman, 204 Misc. 1053, 286 App. Div. 487, 2 N Y 2d 824.) IV. Appellants were properly convicted. (People v. Page, 162 N. Y. 272; People v. Romano, 277 N. Y. 619; People v. Countryman, 201 App. Div. 805.)
   Per Curiam.

Appellants McCarthy and Kancza were discovered by a police officer carrying a closed package consigned by a motor carrier to a corporation described as General Consolidated Ltd. Appellant McCarthy told the officer that the box contained a doll for his sister, and stated that he had found the package around the corner. They were arrested on suspicion. After being arrested, they stated that they got the package from the motor carrier, that a fellow named Casey (later identified as appellant Collins) had thrown the package over a fence. Collins when picked up later admitted having thrown this package over a fence. It was opened at the police station and found to contain stolen radios and radio parts. Appellants moved to suppress this evidence alleged to have been obtained as a result of an illegal search and seizure without a warrant and as incidental to an illegal arrest made without probable cause.

Even in the case of an arrest for a misdemeanor under subdivision 1 of section 177 of the Code of Criminal Procedure, the officer has to have probable or reasonable cause to believe that the prisoner is guilty (People v. Moore, 11 N Y 2d 271; People v. Caliente, 12 N Y 2d 89; People v. DeCillis, 14 N Y 2d 203, decided at same time herewith; People v. Richter, 265 App. Div. 767). The circumstances here were not such as to constitute probable or reasonable cause to believe at the time of the arrests that appellants McCarthy and Kancza were guilty of a crime, and the contents of the package which they were carrying should have been suppressed. A search is good or bad when it starts and does not change character from its success (People v. O’Neill, 11 N Y 2d 148, 153). The validity of an arrest without a warrant depends upon the existence of probable or reasonable cause as justification for the making of the arrest, and such cause cannot be based on evidence obtained as a result of a search when the validity of the search itself depends upon the validity of the arrest (People v. Loria, 10 N Y 2d 368).

The evidence illegally seized, viz., the radios and radio parts in the package carried by defendants McCarthy and Kancza when they were arrested, should be suppressed and the judgments of conviction of appellants reversed and a new trial ordered.

Chief Judge Desmond and Judges Fuld, Van Voorhis, Burke and Bergan concur in Per Curiam opinion; Judges Dye and Scileppi dissent and vote to affirm.

Judgment reversed, etc.  