
    The People of the State of New York, Respondent, v. Anthony Caliente, Appellant. The People of the State of New York, Respondent, v. Joseph Sessa, Appellant. The People of the State of New York, Respondent, v. William Perlman and Abraham Bernstein, Appellants. The People of the State of New York, Respondent, v. Jerry Cognetta and Frank Grecco, Appellants.
    Argued December 6, 1962;
    decided December 31, 1962.
    Argued December 6, 1962; decided December 31, 1962.
    Argued December 4, 1962; decided December 31, 1962.
    Submitted December 6, 1962; decided December 31, 1962.
    
      
      Sidney G, Sparrow and Robert E. Sparrow for Anthony Caliente and Joseph Sessa, appellants.
    1. The trial court erred in admitting People’s exhibits in evidence in that said exhibits were secured in violation of appellants’ constitutional rights. (Mapp v. Ohio, 367 U. S. 643; People v. Defore, 242 N. Y. 13; Draper v. United States, 358 U. S. 307; People v. Foster, 10 N Y 2d 99; People v. O’Connor, 257 N. Y. 473; People v. McCarthy, 188 Misc. 132; People v. Dority, 282 App. Div. 995; People v. Moore, 11 N Y 2d 271; Brinegar v. United States, 338 U. S. 160; People v. Richter’s Jewelers, 291 N. Y. 161; People v. Chiagles, 237 N. Y. 193.) II.. The evidence is totally insufficient, as a matter of law, to warrant a judgment of conviction under section 986-b of the Penal Law.
    
      Stephen A. Fuschino for William Perlman and Abraham Bernstein, appellants.
    I. All the evidence obtained by the police officer was inadmissible against defendants, (Silverman v. United States, 365 U. S. 505; Wakkuri v. United States, 67 F. 2d 844; Kroska v. United States, 51 F. 2d 330; McGinnis v. United States, 227 F. 2d 598; Williams v. United States, 263 F. 2d 487; Fisher v. United States, 205 F. 2d 702; People v. O’Neill, 11 N Y 2d 148; People v. Loria, 10 N Y 2d 368; Jones v. United States, 357 U. S. 493; Silverthorne Lbr. Co. v. United States, 251 U. S. 385; Gouled v. United States, 255 U. S. 298; Marron v. United States, 275 U. S. 192; Hale v. Henkel, 201 U. S. 43; People v. O’Connor, 257 N. Y. 473; People v. Cherry, 307 N. Y. 308; People v. Defore, 242 N. Y. 13; People v. Moore, 11 N Y 2d 271; Nardone v. United States, 308 U. S. 338.) II. The court erred in denying defendants-appellants ’ motion to suppress the evidence seized. 
      (Jones v. United States, 362 U. S. 257; Polk v. United States, 291 F. 2d 230; Plazola v. United States, 291 F. 2d 56; Contreras v. United States, 291 F. 2d 63; Walder v. United States, 347 U. S. 62; Weeks v. United States, 232 U. S. 383; Elkins v. United States, 364 U. S. 206; Mapp v. Ohio, 367 U. S. 643; People v. Defore, 242 N. Y. 13; People v. Coffey, 11 N Y 2d 142; People v. Lane, 10 N Y 2d 347; People v. Rodriguez, 11 N Y 2d 279.)
    
      Frances Kahn for Jerry Cognetta and Frank G-recco, appellants.
    The arrest of defendants was the result of an illegal search and seizure and the evidence should have been excluded. (People v. Goldfarb, 34 Misc 2d 866; Accarino v. United States, 179 F. 2d 456; Miller v. United States, 357 U. S. 301; Mapp v. Ohio, 367 U. S. 643; Johnson v. United States, 333 U. S. 10; Karwicki v. United States, 55 F. 2d 225; Amos v. United States, 255 U. S. 313; Channel v. United States, 285 F. 2d 217; Judd v. United States, 190 F. 2d 649; United States v. Evans, 194 F. Supp. 90; People v. Colletti, 33 Misc 2d 195; United States v. Lefkowitz, 285 U. S. 452; United States v. Jones, 362 U. S. 257; McDonald v. United States, 335 U. S. 451; Silverthorne Lbr. Co. v. United States, 251 U. S. 385; Gouled v. United States, 255 U. S. 298; Brinegar v. United States, 338 U. S. 160; People v. Yarmosh, 11 N Y 2d 397; United States v. Asendio, 171 F. 2d 122; United States v. Sully, 56 F. Supp. 942; People v. Smith, 35 Misc 2d 533.)
    
      Frank D. O’Connor, District Attorney (Benj. J. Jacobson and Harvey B. Ehrlich of counsel), for respondent in the first above-entitled action.
    I. The exhibits had not been secured in violation of appellant’s constitutional rights. (People v. Carpenito, 292 N. Y. 498; Henry v. United States, 361 U. S. 98; People v. Goldstein, 295 N. Y. 61; People v. Moore, 11 N Y 2d 271; People v. Richardson, 287 N. Y. 563; Agnello v. United States, 269 U. S. 20; Harris v. United States, 331 U. S. 145.) II. Appellant’s guilt of violation of section 986-b of the Penal Law was proven beyond a reasonable doubt.
    
      Frank D. O’Connor, District Attorney (Benj. J. Jacobson and Mary Eileen O’Shea of counsel), for respondent in the second above-entitled action.
    I. No error was committed in the admission of People’s Exhibit 1. The arrest was legal. (People v. Moore, 11 N Y 2d 271; People v. Dreares, 15 A D 2d 204, 11 N Y 2d 906.) II. The search and seizure were legal incidents to- the
    
      lawful arrest. (Agnello v. United States, 269 U. S. 20.) III. The evidence was not sufficient to warrant the judgment of conviction for violation of section 986-b.
    
      Frank S. Hogan, District Attorney (Joseph A. Phillips, H. Richard Uviller and Herbert J. Stern of counsel), for respondent in the third above-entitled action.
    Defendants’ motion to suppress evidence was properly denied. (Jones v. United States, 362 U. S. 257; People v. Lane, 10 N Y 2d 347; People v. De Grandis, 16 A D 2d 834; Goldstein v. United States, 316 U. S. 114; United States v. Costello, 255 F. 2d 876; Dorsey v. United States, 174 F. 2d 899, 338 U. S. 950; Mapp v. Ohio, 367 U. S. 643; People v. Decina, 2 N Y 2d 133; People v. Austin, 199 N. Y. 446; People v. Schuyler, 106 N. Y. 298; Bloodgood v. Lynch, 293 N. Y. 308; People v. Loria, 10 N Y 2d 368; People v. Foster, 10 N Y 2d 99; People v. Belcher, 302 N. Y. 529.)
    
      Edward S. Silver, District Attorney (William I. Siegel and Raymond J. Scanlon of counsel), for respondent in the fourth above-entitled action.
    Appellants’ guilt was established beyond a reasonable doubt. No errors of law were committed on the trial. Appellants failed properly to preserve objections for review by this court. (People v. Carpenito, 292 N. Y. 498; People v. Goldstein, 295 N. Y. 61; People v. Pavia, 8 N Y 2d 333; People v. Trombino, 238 App. Div. 61, 262 N. Y. 689; People v. Dunbar Contr. Co., 215 N. Y. 416; People v. Dinan, 15 A D 2d 786; People v. Esposito, 118 Misc. 867; People v. Loria, 10 N Y 2d 368; United States v. Rabinowitz, 339 U. S. 56; People v. Lane, 10 N Y 2d 347; United States v. Mont, 306 F. 2d 412; People v. Goldfarb, 34 Misc 2d 866; People v. Pindar, 210 N. Y. 191; People v. Nixon, 248 N. Y. 182; People v. Steinmetz, 240 N. Y. 411; People v. Bresler, 218 N. Y. 567; People v. Huson, 187 N. Y. 97; Slatterly v. People, 58 N. Y. 354; People v. Friola, 11 N Y 2d 157.)
   Fboessel, J.

Each of the defendants in these four cases was convicted, after trial, of misdemeanors relating to book-making (Penal Law, §§ 986, 986-b). Each defendant urges that his conviction must be reversed because his constitutional rights were violated by the arresting officer’s alleged illegal search and seizure, and the introduction against him of evidence obtained thereby. In each case the arresting officer acted without benefit of a search or arrest warrant, and unless the search be found to be incident to a lawful arrest, it would be illegal (Johnson v. United States, 333 U. S. 10, 15; People v. Loria, 10 N Y 2d 368, 373).

Section 177 of the Code of Criminal Procedure which sets forth the standard for a lawful arrest is clear and unambiguous. It authorizes an arrest for a misdemeanor only if the crime is committed in the arresting officer’s presence. The lawfulness of the arrest does not depend upon the officer’s suspicions, or even upon a reasonable belief on his part that a crime has been committed. In this respect the statute distinguishes between an arrest for a misdemeanor and an arrest for a felony. Unless the misdemeanor is committed in the officer’s presence, he is not privileged to arrest the defendant, and evidence thereafter obtained as the result of a search is inadmissible (Mapp v. Ohio, 367 U. S. 643; People v. Moore, 11 N Y 2d 271). As we wrote in People v. Loria (10 N Y 2d 368, 373, supra), the legality of the arrest ‘‘ cannot be based upon evidence obtained as a result of the search, when the validity of the search itself depends upon the legality of the arrest ”.

In each of these cases the evidence was insufficient to justify an arrest. In People v. Caliente the defendant was handed, in addition to paper money, paper slips, the nature of which was completely unknown to the arresting officer. The mere act of accepting such money and pieces of paper, without more, does not constitute a crime. In People v. Sessa we find no controlling distinction from the facts in the Caliente case.

In People v. Perlman and Bernstein a police officer called a telephone number and placed a number of bets on race horses and baseball games; he did not know with whom he was talking at the time. Thereafter he went across the street to certain premises and stationed himself outside a room in which was located the telephone which he had called. He stuck a pencil through a mail slot in the door, and saw and heard the defendants conversing over the telephone about placing bets. He then entered the room with a passkey, furnished him by the building superintendent, placed the defendants under arrest, and thereupon made a search. The fact that, prior to the time the police officer penetrated the mail slot and entered the premises as aforesaid, he had placed bets over the telephone with persons then unknown, did not justify the entry and the arrest. (See, e.g,, Johnson v. United States, 333 U. S. 10, 15, supra.)

In People v. Cognetta and Grecco the officer stationed himself outside a store, from within which he heard telephone conversations indicating bets were being placed on horse races and foot ball games. The store door was closed and locked. The officer climbed through the transom and entered the store, observed the defendants and placed them under arrest. This evidence was insufficient to authorize a search as an incident to a lawful arrest, since before entering the premises the officer did not know the identities of those to be charged or arrested. (See Johnson v. United States, supra.)

While it may well be true that the officers had probable cause to suspect that the defendants arrested had committed a crime, this does not meet the statutory test as provided in section 177. We are not unmindful of the difficulties the People face in obtaining evidence to establish violations under the Penal Law in cases such as this, but our conclusion here is dictated as a result of Mapp v. Ohio (supra), and by section 177 of the Code of Criminal Procedure, as it now stands, which does not permit, under the circumstances presented by these cases, an arrest without a warrant for a misdemeanor, as such statute provides in eases of felonies.

Accordingly, the judgments should be reversed, the complaints dismissed, and the fines remitted.

Dye, J.'

(dissenting in People v. Perlman and Bernstein). After trial, defendants were found guilty of violation of section 986 (book-making) and section 986-b (possession of book-making records) of the Penal Law. The proof was that an officer called a telephone number listed in the name' of Lang Premiums, 1776 Broadway, on three occasions on the same day and placed a total of eight bets on horse races and baseball games. Thereafter, the officer went across the street to 1776 Broadway, entered and went to the seventh floor where he stationed himself outside Boom 704. After obtaining a view of the room through the mail slot, opened with a pencil, the officer entered with a passkey furnished by the superintendent and arrested the defendants and seized certain betting slips and paraphernalia, which were admitted in evidence over defendants’ objection. The contention herein is that the convictions must be reversed because evidence was admitted which was the result of an illegal search and seizure.

Under our procedure, a police officer may arrest for a misdemeanor only if it was done in his presence ” (Code Crim. Pro., §. 177). Conforming that rule with the announcement contained in Mapp v. Ohio (367 U. S. 643), we have held that the proceeds of a search made pursuant to an arrest for a misdemeanor are inadmissible unless it appear that the officer perceived sufficient facts to justify submission of the factual issue to the trier of the facts (People v. Moore, 11 N Y 2d 271). In our view, the undisputed facts in this case justify the finding that book-maldng was done in the “ presence ” of the officer, which finding satisfies the requirements of section 177 of the Code of Criminal Procedure, and, therefore, the evidence is admissible. The completion of the various phone calls, and the recording of the bets perfected the crime. This, without more, should be sufficient to satisfy the statutory requirement of 11 presence ’ especially when the officer is privy to the conversations. “ Personal presence ” it has been said “ includes corporeal extension within the sphere of sense perception ” (People v. Esposito, 118 Misc. 867, 872).

Under the circumstances, we are satisfied that the subsequent search of the premises was incidental to a lawful arrest. The question is not whether the officer had probable cause to arrest, independent of the facts of any alleged search and seizure (Byars v. United States, 273 U. S. 28; Henry v. United States, 361 U. S. 98), but whether when the officer entered there was evidence sufficient to justify a jury in convicting the defendant (People v. Moore, 11 N Y 2d 271). But even if it may be argued that the search and seizure was technically illegal, due to the circumstance that the officer opened the mail slot with a pencil and thus unreasonably invaded defendants’ right of privacy, there is no showing that these defendants had any right to the privacy allegedly invaded. The Fourth Amendment contemplates only those searches that are unreasonable. Here, concededly, the. premises were in the name of Lang Premiums. Whether these defendants were properly in the premises so as to entitle them to constitutional protection does not appear. The exclusionary rule of Mapp (supra) extends to those whose constitutional rights are disregarded. Rights may not be assumed for the purpose of exclusion. If the defendants had no status to claim the protection, obviously there is no good reason for excluding the evidence as fruits of an unlawful seizure. It must be the defendants’ own privacy which is invaded by the officers. Evidence obtained in violation of the rights of some third person is not excludable (8 Wigmore, Evidence [3d ed.], § 2184a). Nor does it matter that the possessory crime (§ 986-b) was not done in the presence of the officer, for it is well settled that, when articles come into an officer’s possession in the course of a lawful search, they need not be returned because it was not one of the things that he had cause to look for (Harris v. United States, 331 U. S. 145; Abel v. United States, 362 U. S. 217, 241). Nor does it matter that the government acquired the same information it already legally had as a result of an illegal search (Silverthorne Lbr. Co. v. United States, 251 U. S. 385; People v. Rodriguez, 11 N Y 2d 279).

The judgment of conviction should be affirmed.

Burke, J.

(dissenting in People v. Caliente). The majority reverse the conviction because, since the acts of the defendant observed by the arresting officer did not, standing alone, constitute legally sufficient evidence to support a conviction, the misdemeanor was not committed in the ‘ presence ’ ’ of the policeman and the arrest was consequently unlawful and the additional, and admittedly adequate, evidence obtained through the search incident thereto inadmissible. This is a reading of section 177 of the Code of Criminal Procedure which seems inexplicable. I had. always thought that a crime was being committed in one’s presence if one was there while it was going on and could see, hear or otherwise sense what was happening. One is in the presence of an iceberg even though only that part above the water can be seen.

Up till now this court has held that it was for the jury to determine whether a misdemeanor had been committed in the presence of the arresting officer. If the defendant was convicted of the misdemeanor for which he was arrested, and the arresting officer had been “present”, as that word is ordinarily used, during the commission of the misdemeanor, that ended the matter and no action for wrongful arrest could ever be brought. Conversely, and it is this fact which I believe has led the court astray here, if the person arrested could show that he did not commit the misdemeanor for which he was arrested, no amount of probable cause could avail the policeman against an action for unlawful arrest. (Stearns v. Titus, 193 N. Y. 272; People v. Defore, 242 N. Y. 13; McLoughlin v. New York Edison Co., 252 N. Y. 202.)

We are now confronted with a problem presented by the ruling of Mapp v. Ohio (367 U. S. 643) which forces us to distinguish, on criminal appeals, between evidence legally and illegally obtained. It is clear, therefore, that the old rule governing the legality of no-warrant misdemeanor arrests can no longer be determined by whether or not the jury ultimately convicts the defendant, at least where there is a claim that some of the evidence supporting the conviction was seized incident to an illegal arrest, the legality of which must be determined in order to determine whether the evidence seized incident thereto was the product of an unreasonable search. The circularity of such a test is apparent.

The majority has resolved the problem by holding that in the case of a no-warrant misdemeanor arrest, i.e., for a misdemeanor committed in the “presence ” of the arresting officer, no misdemeanor is committed in anyone’s ‘ ‘ presence ’ ’ unless what was directly observed could, in and of itself, sustain a conviction. That is to say, unless in retrospect sufficient evidence to convict was apparent to the arresting officer, the arrest is unlawful and all further evidence seized incident thereto is inadmissible notwithstanding the degree of probable cause for the arrest and the persuasiveness of any additional evidence obtained through the search.

Section 177 does not, of course, so require. All it demands of a no-warrant misdemeanor arrest is that there be (1) a misdemeanor, and (2) that it he committed in the arresting officer’s presence. It is not addressed to the question of how either of these two requisites is established. As far as section 177 is concerned, therefore, the arrest is legal ah initio if the officer was there when the alleged misdemeanor was committed and the jury convicts, thereby finding that the misdemeanor actually was committed. It is quite true that we must conform to the Mapp {supra) holding and the further constitutional requirement that ‘ ‘ a search is not to be made legal by what it turns up. In law it is good or bad when it starts and does not change character from its success.” (Byars v. United States, 273 U. S. 28, 29; United States v. Di Re, 332 U. S. 581, 595.) I think, however, that the majority has gone too far. All that the Constitution requires in such a case is that there be probable cause for the search. If the arrest to which it is incident is otherwise lawful, and I have tried to show that it is here, the search is likewise lawful and the evidence admissible. (Brinegar v. United States, 338 U. S. 160.)

To summarize, I would not dilute the existing statutory requirement that the misdemeanor be actually committed in the arresting officer’s presence, as ultimately determined by the jury. To conform to constitutional requirements governing searches, I would add that the officer must also have probable cause to believe that the proper statutory grounds for the arrest, to which the proposed search will be incident, exist. In the case of misdemeanors, this would be probable cause to believe that a misdemeanor is being committed in the presence of the policeman. Such cause clearly existed here. I would, however, not add the requirement adopted by the court today. Such a rule will inevitably engage this court in a morass of reviewing no-warrant misdemeanor convictions to determine not only if there is sufficient evidence to support the conviction, but, collaterally, whether such evidence was apparent to the arresting officer prior to the search.

In People v. Caliente: Judgment reversed and the complaint dismissed.

Chief Judge Desmond and Judges Fuld, Van Voobhis and Foster concur with Judge Froessel; Judge Burke dissents in an opinion in which Judge Dye concurs.

In People v. Cognetta and Grecco: Judgments reversed, the complaint dismissed and the fines remitted.

Judges Fuld, Van Voobhis and Foster concur with Judge Froessel ; Chief Judge Desmond dissents and votes to affirm on the ground that in reason these crimes were committed ‘ ‘ in the presence ” of the officer within the meaning of section 177 of the Code of Criminal Procedure. (See People v. Foster, 10 N Y 2d 99, 102.) Judges Dye and Burke dissent and vote to affirm for the reasons stated in the dissenting opinion in People v. Perlman and Bernstein, decided herewith.

In People v. Perlman and Bernstein: Judgments reversed, the complaint dismissed and the fines remitted.

Judges Fuld, Van Voorhis and Foster concur with Judge Froessel ; Chief Judge Desmond dissents and votes to affirm on the ground that in reason these crimes were committed “ in the presence ” of the officer within the meaning of section 177 of the Code of Criminal Procedure. (See People v. Foster, 10 N Y 2d 99, 102.) Judge Dye dissents in an opinion in which Judge Burke concurs.

In People v. Sessa: Judgment reversed, the complaint dismissed and the fines remitted.

Chief Judge Desmond and Judges Fuld, Van Voorhis and Foster concur with Judge Froessel; Judges Dye and Burke dissent and vote to affirm for the reasons stated in the dissenting opinion in People v. Caliente, decided herewith.

Judgments reversed, etc. 
      
      . Even accepting the reasoning of the majority, the policeman observed sufficient acts of the defendant to make out a prima facie case of the crime of book-making. The defendant’s furtive conduct supplied the elements we noted as missing in People v. Carpenito, 292 N. Y. 498.
     