I dissent in part and would reverse, grant the motion to suppress, vacate the judgment and reinstate the indictment, and order a new trial.
The Court of Appeals in reversing the judgment of conviction and ordering a new trial expressly found the search in this case was not conducted pursuant to a legal warrant, nor was it a consent search. The remaining basis upon which the search and seizure could be upheld was if such search and seizure were incident to a lawful arrest (People v. Loria, 10 N Y 2d 368, 373). The court pointed out that “ The validity of an arrest or an entry to effect an arrest without a warrant depends on there being probable cause to make the arrest ” (p. 373). The court rightly felt that the People should have an opportunity to show probable cause and thereby establish the propriety of the police entry. The court expressly recognized the right of the defendant to move to suppress the challenged evidence.
The hearing on the motion to suppress produced no new evidence. The testimony of Sergeant Brennan, and the stipulation as to the testimony of Detective Short, merely confirmed the illegality of the entry condemned by the Court of Appeals. While the trial court in its opinion and disposition apparently misconceived the object of the hearing, the record indicates clearly that both the People and counsel for defendant understood its purpose. The defendant sought to meet the initial burden of properly raising the question and offered evidence in support of his contention that the search was illegal. The People, without going forward (People v. Malinsky, 15 N Y 2d 86), rested on that evidence, content to have the trial court decide the legal issue on the basis of what was before it. Such evidence, without more, compels a granting of the motion to suppress (People v. Loria, 10 N Y 2d 368). To now say to the *122People go back and try again and see if you cannot produce more, is to create a further hazard for the defendant not fairly contemplated in law. It could conceivably produce evidence which, because of the lapse of time, might or might not reflect the sequence of events as they actually occurred.
Babin, J. P., Eager and Steuer, JJ., concur with Valente, J.; Stevens, J., dissents in part in opinion.
Order entered on or about February 4, 1964, denying the motion to suppress reversed, on the law and the facts, and the matter remitted to the trial court for a further hearing and proceedings in accordance with the opinion of this court filed herein and the decision in People v. Loria (10 N Y 2d 368). In the interim, the pending appeal in this court will be held in abeyance.