I disagree. We may not speculate, as the majority has, that the basis for the court’s suppres*18sion of the policy slips was its disbelief of the police officer’s testimony as to what he saw and heard. There is nothing in the record to sustain this assumption. The court could have come to the erroneous conclusion that there was insufficient evidence to establish probable cause even though it believed the police officer’s testimony. Since none of defendant’s constitutional rights were violated, the judgment appealed from should be affirmed.
Chief Judge Fuld and Judges Bergan and Breitel concur with Judge Burke ; Judge Scileppi dissents and votes to affirm in a memorandum in which Judges Van Voorhis and Keating concur.
Judgment reversed, etc.