People v. Whitthorne

—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.