Opinion
Decided March 29, 1984
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, James J. Leff, J.
Richard Ware Levitt for appellant.
Robert M. Morgenthau, District Attorney ( Richard M. Breslow and Susan Corkery of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be reversed, the motion to suppress granted and a new trial ordered.
In the absence of factual findings by the trial court and the Appellate Division that the officers had probable cause to arrest defendant, we cannot say that the search of his duffel bag was lawful. (See People v Gokey, 60 N.Y.2d 309; People v Smith, 59 N.Y.2d 454; cf. People v Harrison, 57 N.Y.2d 470.)
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER, SIMONS and KAYE concur.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, motion to suppress granted and a new trial ordered in a memorandum.