The People of the State of New York, Respondent, v. Jerome McCants, Appellant

The People of the State of New York, Respondent, v Jerome McCants, Appellant. [MAJORITY] — Appeal by the defendant from a judgment of the Supreme Court, Westchester County (Rosato, J.), rendered April 25, 1990, convicting him of criminal possession of a controlled substance in the fifth degree, upon his.plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing, of that branch of the defendant’s omnibus motion which was to suppress physical evidence. Ordered that the judgment is affirmed. On the evening of July 6, 1989, two police officers dressed in plain clothes and operating an unmarked police car drove to the intersection of Fourth Avenue and Fourth Street in the City of Mount Vernon in order to investigate a complaint of a man selling drugs at that location. While they were stopped at the intersection for a traffic light, they heard a voice cry out "five-o”, a slang term used to warn people of police presence in an area, and they then saw the defendant take a brown paper bag out of his pocket, drop it to the ground, and then walk away. The officers exited their car and, without saying anything to the defendant, walked immediately over to the bag which they picked up, opened and discovered numerous capsules of cocaine. At this point, one of the officers ran to catch up with the defendant and placed him under arrest. Upon these facts, we find that the hearing court properly denied that branch of the defendant’s omnibus motion which was to suppress the bag and its contents. The hearing court correctly determined that the bag and its contents had been abandoned by the defendant when he discarded the bag and walked away (see, People v Thomas, 161 AD2d 1167; People v Kosciusko, 149 AD2d 620; People v Chestnut, 91 AD2d 981). Contrary to the defendant’s contention, the discarding of the bag was not in response to any unlawful police conduct since he discarded it before the officers even approached him (see, People v Wade, 137 AD2d 638; People v Williams, 123 AD2d 652). Thompson, J. P., Lawrence, Balletta and O’Brien, JJ., concur.