PEOPLE v. RALFOPOULOS (2000)

Appeal by the defendant from a judgment of the Supreme Court, Queens County (Finnegan, J.), rendered January 8, 1997, convicting him of criminal possession of a weapon in the third degree, upon his plea of guilty, and imposing sentence.   The appeal brings up for review the denial, after 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, the defendant's plea is vacated, that branch of the defendant's omnibus motion which was to suppress physical evidence is granted, Count 15 of 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.

The evidence adduced at the hearing failed to establish that the police had probable cause to arrest the defendant for possession of the bullets found in the car in which he was riding (see generally, People v. Manini, 79 N.Y.2d 561, 572-574, 584 N.Y.S.2d 282, 594 N.E.2d 563).   Since the police did not have probable cause to arrest the defendant, the gun found in his possession during a search incident to his arrest should have been suppressed.   As the only charge against the defendant in the indictment was for criminal possession of a weapon in the third degree, his conviction must be vacated and that count of the indictment dismissed.

MEMORANDUM BY THE COURT.