
    The People of the State of New York, Respondent, v Sherman Dickerson, Appellant.
   — Motion for reargument granted, and upon reargument, judgment reversed on the law, defendant’s motion for suppression of showup identification granted, and new trial granted. Memorandum: We agree with defendant that the showup identification cannot be upheld pursuant to People v Hicks (68 NY2d 234) because the only theory advanced by the People at the suppression hearing and on appeal was that probable cause justified an arrest before defendant was taken to the scene for identification.

The action of the police may not be upheld on a theory not argued by the People before the suppression court (People v Johnson, 64 NY2d 617, 619, n 2; People v Dodt, 61 NY2d 408, 416; People v Knapp, 52 NY2d 689, 699 [Jasen, J., concurring]). The People were not prevented from offering proof or advancing an appropriate legal theory by the suppression court’s erroneous determination that the police had probable cause (cf., People v Crandall, 69 NY2d 459). Present—Dillon, P. J., Denman, Green, Pine and Balio, JJ.  