People v. Robbins (196 A.D.2d 699, 1993)

Judgment, Supreme Court, New York County (Edward J. Sheridan, J.), rendered May 13, 1992, convicting defendant, upon his plea of guilty, of attempted criminal possession of a controlled substance in the fourth degree, and sentencing him, as a second felony offender, to a term of 2Vi to 5 years, affirmed.

Defendant’s motion to suppress the cocaine was properly denied since his discarding of it during the chase was not precipitated by illegal police conduct (People v Leung, 68 NY2d 734, 736). The stop of the cab in which defendant was a passenger was justified by the officers’ observation that the cab’s brake lights were not functioning (People v Ingle, 36 NY2d 413), and pursuit of the defendant justified by his precipitate flight, hand motion grabbing at his waistband, and glances over his shoulder, all of which gave rise to a reasonable suspicion that defendant had committed or was about to commit a crime (see, People u Martinez, 80 NY2d 444). Accordingly, the pursuit by the officers was justified and defendant’s abandonment of the contraband during the chase was not in response to unlawful police conduct (see, People v Matienzo, 81 NY2d 778). Concur—Sullivan, J. P., Kupferman, Ross and Asch, JJ.

Ellerin, J.,

dissents in a memorandum as follows: I would reverse based on People v Grant (164 AD2d 170, appeal dismissed 77 NY2d 926). The flight of the defendant, in and of itself, could not create a reasonable suspicion of criminal activity (People v Martinez, 80 NY2d 444, 448, citing People v May, 81 NY2d 725). Here there were no facts beyond defendant passenger’s flight upon the officers’ approach to the cab on which to base a finding of reasonable suspicion of criminal activity on the part of defendant.