Opinion
November 24, 1997
Appeal from the Supreme Court, Queens County (Cooperman, J.).
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, under 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 A.D.2d 894, 895; see also, People v. McCready, 121 A.D.2d 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).