People v. Whitthorne

Appellate Division of the Supreme Court of New York

People v. Whitthorne

255 A.D.2d 534, 682 N.Y.S.2d 56, 1998 N.Y. App. Div. LEXIS 12610

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 23, 1998

StatusPublished

This text of 255 A.D.2d 534 (People v. Whitthorne) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Whitthorne, 255 A.D.2d 534, 682 N.Y.S.2d 56, 1998 N.Y. App. Div. LEXIS 12610 (N.Y. Ct. App. 1998).

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Opinion

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (O’Dwyer, J.), rendered September 19, 1996, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. This appeal brings up for review the denial, áfter a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is reversed, on the law, that branch of the defendant’s omnibus motion which was to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

Since the defendant’s behavior was susceptible to an innocent interpretation and his arrest was based on no more than a suspicion that the cigarette he was holding contained marihuana, the police did not have probable cause to arrest him (see, People v Wilson, 175 AD2d 15; People v Baldon, 51 AD2d 880). Accordingly, any evidence seized should have been suppressed (see, Wong Sun v United States, 371 US 471). O’Brien, J. P., Florio, McGinity and Luciano, JJ., concur.

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—Appeal by the defendant from a judgment of the Supreme Court, Queens County (O’Dwyer, J.), rendered September 19, 1996, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. This appeal brings up for review the denial, áfter a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the judgment is reversed, on the law, that branch of the defendant’s omnibus motion which was to suppress physical evidence is granted, the indictment is dismissed, and the matter is remitted to the Supreme Court, Queens County, for the purpose of entering an order in its discretion pursuant to CPL 160.50.

Since the defendant’s behavior was susceptible to an innocent interpretation and his arrest was based on no more than a suspicion that the cigarette he was holding contained marihuana, the police did not have probable cause to arrest him (see, People v Wilson, 175 AD2d 15; People v Baldon, 51 AD2d 880). Accordingly, any evidence seized should have been suppressed (see, Wong Sun v United States, 371 US 471). O’Brien, J. P., Florio, McGinity and Luciano, JJ., concur.

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Bluebook (online)

255 A.D.2d 534, 682 N.Y.S.2d 56, 1998 N.Y. App. Div. LEXIS 12610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-whitthorne-nyappdiv-1998.

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