The People of the State of New York, Respondent, v. James Robbins, Appellant

The People of the State of New York, Respondent, v James Robbins, Appellant. [601 NYS2d 617] [MAJORITY] 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. [DISSENT — Ellerin, J.,] 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.