
    The People of the State of New York, Respondent, v. Frank Scalegnio, Appellant.
    Submitted April 1, 1964;
    decided May 7, 1964.
    
      
      P. Emmett Toner for appellant.
    
      John M. Braisted, Jr., District Attorney (Thomas R. Sullivan of counsel), for respondent.
   Order of Appellate Term reversed and motion to suppress granted (see People v. Caliente, 12 N Y 2d 89).

Concur: Chief Judge Desmond and Judges Fuld, Van Voorhis, Burke, Scileppi and Bergan. Judge Dye dissents and votes to affirm in the following memorandum: When we take into consideration that, shortly before the officer lawfully stopped defendant’s automobile for a traffic violation, he had observed defendant make contact with a known drug pusher under suspicious circumstances, it was not unreasonable for the officer to believe that defendant was committing the crime of possession of narcotics in his presence. This being so, probable cause existed for the arrest of defendant without a warrant and the officer was justified in seizing what appeared to be a package of marijuana lying in plain sight in the automobile.  