Defendant was indicted for possession of a weapon as a felony and criminal possession of stolen property in the second degree. The latter count was dismissed on motion of the People. After denial of his motion to suppress the gun, defendant pleaded guilty to the first count and was sentenced to an indeterminate term of imprisonment not to exceed three years. On appeal defendant argues that the suppression motion was improperly denied. For the reasons hereinafter stated, we agree with such contention.
At or about 11:00 a.m. on March 28, 1973, three police officers, in civilian clothes, cruising in an unmarked car, observed appellant "walking very, very slowly” on Broadway. He was kept under surveillance for the next 15 minutes, during which time he allegedly looked into several store windows, repeatedly stopped and looked over his shoulder and, on one occasion, "walkfedjby a store, and then walkfed] back a half a block and look[ed] into the store a second time.” The officers then saw defendant enter a hotel on West 75th Street. They followed and spoke to the manager who could not recall any resident of the hotel matching defendant’s description.
A maintenance man, however, directed the officers and the manager to the second floor, where he had seen a person who fit that description. At that location, defendant was observed exiting from a "common bathroom”. In response to the District Attorney’s question, "What happened then?”, the officer stated:
"As we entered there was a small corridor running off the main hallway in this hotel where this bathroom is located down there, and as we started to pass it, we observed the defendant exiting this common bathroom. I identified ourselves and I asked him what he was doing in the hotel, and he *347said that he was a resident of room 208 which was the room exactly next to this common bathroom. The manager of the hotel said that he was not a resident of the room. The room was rented to a female only. At this time we approached the defendant, and patted him down, and found a loaded twenty five caliber automatic in a holster on the right side of his belt.”
On cross-examination the officer added the additional fact that, on initial inquiry, appellant "attempted to reenter the bathroom” or "made a motion like he was going to start into the bathroom.” In any event, it is clear that defendant was frisked thereafter; and only when the hotel manager contradicted appellant’s assertion that he was a resident of the hotel. The following day the hotel manager confirmed appellant’s claim that he was living with the woman who had rented Room 208.
Concededly, the reasonableness of the officer’s conduct must be determined by the facts available to him at the time of the stop-and-frisk and cannot be affected by subsequent events. (People v Moore, 32 NY2d 67.) Nevertheless, on the instant record and giving full credence to the arresting officer’s testimony, we find an insufficient basis for the seizure and search.
At the moment of confrontation appellant had committed no overt criminal act; nor could the officer have reasonably suspected that defendant was committing, had committed or was about to commit either a felony or a Class A misdemeanor. (CPL 140.50, subd 1.) Moreover, and the suppression court so found, neither officer involved in the arrest reasonably suspected that he was in danger of physical injury. (CPL 140.50, subd 3.)
Defendant was not trespassing since the hotel premises entered were open to the public and defendant defied no lawful order not to enter or remain. (Penal Law, § 140.00, subd 5.) And even if, because of the hotel manager’s statement and defendant’s allegedly equivocal conduct, the officer had a founded suspicion that criminal activity was afoot, defendant’s conduct would, at best, have amounted to trespass (a violation) or criminal trespass in the third degree (a Class B misdemeanor). A reasonable suspicion of the commission of either of such offenses did not authorize a stop-and-frisk. (CPL 140.50.)*
*348Since the initial stop was unlawful, the evidence thereafter obtained must be suppressed. (People v Cantor, 36 NY2d 106.)
Accordingly, the judgment of Supreme Court, New York County (Ascione, J.), rendered November 27, 1973, should be reversed, on the law, and vacated, the order of said court denying defendant’s suppression motion should be reversed, on the law, and granted, and the indictment dismissed.
The instant arrest was made on March 28, 1973, prior to the effective date of L 1973, ch 714, deleting "class A” before "misdemeanor” in subdivisions 1 and 2 of CPL 140.50.