The Hearing The first witness called was FRANCIS VASQUEZ. He is a resident of Elmont, and resided four doors east of the delicatessen which was the subject of the burglary (11)*. On October 29, 1966, his wife mentioned to him that she had seen two men in the drug store next to his apartment. The time was approximately 11:30 P.M. He went to his rear door and observed two men standing in the parking lot behind the row of stores (12-16). He periodically kept checking, through his window, their activity. At one point, he observed one of the men running back and forth from behind the stores and looking down the driveway. Considering this activity suspicious, he contacted the 5th Precinct (18, 19). He later observed a car drive up the driveway and two men leave the delicatessen and enter the car (20, 21). He attempted to follow but was unable to do so. Patrolman Craner arrived, Mr. Vasquez described the When automobile as a 1957 Chevrolet with the rear tail light lens missing but the light working. He described the individuals and thought that one of the individuals was named Charlie (22). Behind the delicatessen there were two cartons of cigarettes laying in the parking lot where the automobile had stopped and the back door of the delicatessen was open (30). Nassau County Detective ERICK WILLIAMS testified that during his tour of duty on October 29, 1966, he was notified by a patrolman over his radio that the West Gate Delicatessen in Elmont had been burglarized and that the occupants of a 1957 Chevrolet, two-tone green, with left rear tail light lens missing, was sought, possibly containing the perpetrators (68-72). The notification also informed him * Reference is to minutes of search and seizure hearing. that rolled coins, beer and cigarettes would possibly be in the possession of the perpetrators. He proceeded to the premises known as the West Gate Delicatessen and observed the break. He also observed that the cooler in the delicatessen was open and several six packs of beer were on the floor. Outside on the ground were several cartons of cigarettes (72-73). Several empty money sacks were on the floor. He was informed by an employee of the delicatessen that the sacks had contained rolled coins and bills. He was also informed that 100 cartons of cigarettes were missing and that the estimated loss in money was $250 (76-79). On October 30, 1966, the day after the burglary, Detective Williams proceeded to an address in Elmont. There he observed a vehicle containing large cartons of cigarettes (81, 88, 89). He further observed that the markings on these cigarettes indicated "West Gate Delicatessen." The individual standing next to the car was one Louis Frotello who admitted that he had received the cigarettes the night before from several other individuals (88, 89, 90). He denied any knowledge of the burglary. The third witness for the People was SERGEANT PETER MARGRAF of the Lynbrook Police Department who testified to receiving a notification over his radio that three males were wanted for a burglary that had been committed at the West Gate Delicatessen, and that the car in which they had escaped was a 1957 Chevrolet sedan, two-tone green with the left rear tail light missing, and that the vehicle probably contained beer, cigarettes and rolled coins which were the proceeds of the burglary (135-136). Shortly after midnight of October 29, 1966, he observed a two-tone blue 1957 Chevrolet sedan with the left rear tail light lens missing in the vicinity of the Club Jay Bar in Lynbrook (138). The vehicle was leaving a parking lot at the time. He pulled the vehicle over and requested license and registration. During this process, the officer observed with the use of his flashlight and without entering the vehicle, two cartons of cigarettes on the floor of the car, two six packs of beer and two pinch bars (139, 140). He also noticed on the rear shelf of the car was a dish with two rolls of dimes in it. The driver of the vehicle, the defendant-appellant, could not produce a license (140, 141). The witness then took the occupants of the vehicle to the station house and informed them that it was in connection with a burglary under investigation in Elmont (141143). At the station house, two rolls of quarters were found in the defendant Record's boots. A further search of her purse disclosed a roll of quarters (145, 146). All the defendants were placed under technical arrest (146). The articles were subsequently removed from the vehicle. In addition to the items seen on the street, $82 in rolled coins was found in the trunk of the vehicle (148-150). The Issue Was the seizure of the stolen articles valid? POINT I The police action in confiscating the fruits of the burglary was a valid and lawful seizure. It is clear that the arresting officer was lawfully authorized to stop the defendant's automobile being driven by the defendant, Snyder, and demand registration. This is justified pursuant to § 401 of the Vehicle and Traffic Law and under the case law followed in People v. Scianno, 20 App. Div. 2d 919 and People v. Battle, 12 N.Y. 2d 866. Certainly, it was a proper performance of the officer's duty to stop the defendant as a result of the description he received on his car radio, that description being a 1957 Chevrolet sedan, two-tone green, with the rear left tail light lens missing but the light working. The alarm further indicates that the occupants of that vehicle were shortly before involved in the burglary of a delicatessen. The officer shortly after midnight actually approached a 1957 two-tone blue Chevrolet with the left rear tail light lens missing but the bulb working. The courts have consistently held that the evidence needed to make such an inquiry need not be to the same degree as the law requires for an officer to make a summary arrest. "Prompt inquiry into suspicious and unusual street action is indispensible police power in the orderly government of large urban communities." (People v. Rivera, 14 N.Y. 2d 441, 444). The officer, without entering the vehicle, observed through the use of his flashlight (People v. Anthony, 21 App. Div. 2d 666) two pinch bars, two six packs of beer and two cartons of cigarettes on the floor of the vehicle. He also observed on the rear shelf of the vehicle a dish containing two rolls of dimes. According to the alarm received, these were the items taken from the delicatessen. This action does not constitute a seizure as the result of a search. "It is well established that it is not a search to observe what is open and patent either in daylight or in artificial light. (Davis v. United States, 327 F. 2d 301, 305; United States v. Lee, 274 U.S. 559; Smith v. United States, 2 F. 2d 715.) Our state courts have followed this principle holding that this activity does not come within the protection of the constitutional prohibition against unreasonable search es and seizures (People v. Clarence Ray and John Hall, 26 App. Div. 2d 560; cf. People v. Swanberg, 22 App. Div, 2d 902, modified in other respects and affirmed 16 N.Y. 2d 649; People v. Manzi, 38 Misc. 2d 114, affirmed 21 App. Div. 2d 57; People v. Hoffman, 24 App. Div. 2d 497). The arrest of the defendant on the street subsequent to observing the beer, cigarettes and coins certainly constituted probable cause for believing that the defendant had committed the reported crime and thus under any view would validate his arrest under § 177 of the Code of Criminal Procedure. Following this view, a subsequent search (if it be a search) was legal as incidental to a lawful arrest (People v. Loria, 10 N.Y. 2d 368). POINT II The court properly refused to permit the defendant to inquire into the legality of a co-defendant's statement. The defendant objects to the trial court having precluded him from inquiring into the legality of the codefendant's statements, his contention being that the codefendant's statement was improperly secured and, therefore, the seizure of the balance of the cigarettes from the "fence", Louis Fortello, was the poison fruit of an illegal confession. The People submit that this is not a proper view. The defendant lacked any standing to object to the legality and circumstances surrounding the co-defendant's statement. No defendant is in a position to challenge the constitutionality or legal admissibility of a co-defendant's statement or a witness' statement. This is poignantly demonstrated in the case of People v. Portelli, 15 N.Y. 2d 235. In that case, prior to trial, a witness against the defendant had been coerced by the police through the use of torture to make a statement implicating the defendant, Portelli. The defendant's position was that the testimony |