Milonas and Smith, JJ., dissent in a memorandum by Smith, J., as follows: Defendant’s arrest was without probable cause and the evidence was insufficient to establish his guilt beyond a reasonable doubt. I therefore dissent.
Defendant was convicted, after a bench trial, of promoting gambling in the first degree (Penal Law § 225.10 [1]), possession of gambling records in the first degree (Penal Law § 225.20 [1]), and possession of a gambling device (Penal Law § 225.30 [2]). The law sets forth these offenses as follows:
"§ 225.10 Promoting gambling in the first degree. "A person is guilty of promoting gambling in the first degree when he knowingly advances or profits from unlawful gambling activity by: "1. Engaging in bookmaking to the extent that he receives or accepts in any one day more than five bets totaling more than five thousand dollars * * * "Promoting gambling in the first degree is a class E felony.” "§ 225.20 Possession of gambling records in the first degree. "A person is guilty of possession of gambling records in the first degree when, with knowledge of the contents thereof, he possesses any writing, paper, instrument or article: "1. Of a kind commonly used in the operation or promotion of a bookmaking scheme or enterprise, and constituting, re-*309fleeting or representing more than five bets totaling more than five thousand dollars * * * "Possession of gambling records in the first degree is a class E felony.” "§ 225.30 Possession of a gambling device. "A person is guilty of possession of a gambling device when, with knowledge of the character thereof, he manufactures, sells, transports, places or possesses, or conducts or negotiates any transaction affecting or designed to affect ownership, custody or use of * * * "2. Any other gambling device, believing that the same is to be used in the advancement of unlawful gambling activity * * * "Possession of a gambling device is a class A misdemeanor.” The evidence adduced at trial established, inter alia, that the defendant was arrested without a warrant while he was lawfully walking in the public hallway of an office building. The arrest was based solely upon the arresting officer’s belief that the defendant had come from room 406, an office believed to be an illegal gambling wire room where bets were called in. The officer did not see from which of a possible ten offices the defendant had exited. He assumed that the defendant had come from the office under surveillance and for which there was a search warrant for gambling paraphernalia. This assumption was based upon the officer’s failure to hear any noises coming from any office on that floor other than room 406. Clearly, at that point there was no probable cause to believe that the defendant had committed a crime. (See, People v De Bour, 40 NY2d 210, 223 [1976]; CPL 140.10.)
Upon his arrest, the defendant was taken into room 406, marked as Marvin Seigal Hardware, which the evidence established was in fact an illegal gambling wire room. The room was approximately eight by twelve feet and was furnished with a large table with four or five chairs around it. There was a telephone connected to a tape recorder in front of each chair. Various recognizable gambling paraphernalia was found: betting slips, tally sheets, and line sheets. Three men were found seated at the table in room 406. Two men were using the telephone; they were co-defendants at trial. Defendant took a seat at the table in a chair with a jacket on the back. When he departed, defendant put the jacket on.
The testimony at trial further revealed that the defendant was never observed using any telephone in room 406 or writing anything down therein. No handwriting or fingerprint *310evidence was offered against the defendant. There also was no evidence, such as a lease, establishing any interest in the premises attributable to the defendant.
First, there was no probable cause to arrest the defendant in the hallway. Thus the jacket taken from the chair in the room where defendant was taken should have been suppressed as fruit of the poisonous tree. (See, Wong Sun v United States, 371 US 471 [1963]; Dunaway v New York, 442 US 200 [1979]; People v Johnson, 129 AD2d 739 [1987]). When the jacket is suppressed, there is no evidence against the defendant.
Moreover, the evidence is insufficient to establish beyond a reasonable doubt that he promoted gambling by receiving or accepting proscribed bets and that he possessed any gambling records or devices. (People v Lunsford, 46 AD2d 612 [1974]; Penal Law § 225.10 [1]; § 225.20 [1]; § 225.30 [2]; see also, People v Diaz, 54 AD2d 543 [1976].)
In People v Lunsford (supra), the convictions of three defendants for promoting gambling and possession of gambling records were reversed where the defendants were not the subjects of a search warrant, there was no attempt to prove who leased the premises, and the defendants were merely present in the apartment.
In People v Diaz defendant’s conviction of grand larceny in the second degree and illegal possession of a vehicle identification number plate was reversed. The evidence revealed that a stolen car was inside of a garage in the process of being stripped. Two men were inside the vehicle and were stripping it. There were several license plates from other vehicles nearby. Defendant was not shown to be stripping the car or in actual possession of the license plates. The court concluded that his mere presence was insufficient to establish his guilt.
Finally, defendant here was not the subject of the search warrant.
Accordingly, I would reverse the conviction and dismiss the indictment.