People v. Alburquerque

—Appeal by the defendant from a judgment of the Supreme Court, Queens County (Cooperman, J.), rendered November 27, 1995, convicting him of criminal possession of a weapon in the third degree, upon a jury verdict, and imposing sentence. The appeal brings up for review the denial, after a hearing (Lisa, J.), of that branch of the defendant’s omnibus motion which was to suppress a weapon.

Ordered that the judgment is reversed, on the law, that branch of the defendant’s omnibus motion which was to suppress a weapon 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.

Although the stop of the livery cab in which the defendant was a passenger was permissible, suppression of the weapon seized was nevertheless required. This is so because the search of the rear passenger compartment and the resulting seizure of the gun which was contained in a closed bag in that area, raider the front seat, was improper. The search was conducted after the defendant and the other passenger had already been removed from the vehicle and frisked without incident (see, People v Mullins, 196 AD2d 894, 895; see also, People v McCready, 121 AD2d 897, 898). Santucci, Joy and Florio, JJ., concur.

Pizzuto, J. P., dissents, and votes to affirm the judgment appealed from for reasons stated by Justice Lisa in his memorandum decision and order at the Supreme Court, Queens County, dated May 17, 1995 (People v Alburquerque, 165 Misc 2d 197).