Rosenberger, J. P. (dissenting). The majority today affirm a judgment, finding no fault with an order, denying suppression, based upon the trial court’s finding that "this is quite patently *211a narcotic transaction with a New Jersey vehicle and a white man approaches a hispanic male”. I would reverse. No case cited in their opinion has found "a credible belief that a crime was about to occur” based upon so little: two men of different ethnicity, one of whom drove a car with a New Jersey license plate, approaching each other in Washington Heights, a drug-prone area.
In People v Martinez (80 NY2d 444), relied upon by the majority, reasonable suspicion of criminal activity depended upon the defendant’s removing from a concealed location, in an area known for its excessive drug activity, late at night, a device known to be commonly used to conceal drugs.
In People v Fields (171 AD2d 244), relied upon by the majority, this Court found that the reasonable suspicion of criminal activity arose when the defendant abandoned his vehicle in the midst of a congested urban intersection, fleeing on foot, while still clutching a white plastic bag which had the outlines of a square object which the police officer believed, based upon his narcotics training and experience, resembled in size and shape a kilogram of cocaine. The portion of this Court’s opinion quoted by the majority, led this Court to conclude that, at that point the officers had only "a proper basis to approach and inquire” (supra, at 248).
The officers here may well have had a right to inquire. They did not, however, have more. The portion of the Court’s decision in People v Martinez (supra), quoted at length by the majority, is indeed instructive. The Court stated (supra, at 448):
"that the objective evidence necessary to support a stop and seizure short of an arrest is reasonable suspicion [citations omitted], "Reasonable suspicion represents that 'quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand’ [citation omitted] * * * "Defendant had a right to refuse to respond to a police inquiry and his flight when the officers approached could not, in and of itself, create a reasonable suspicion of criminal activity (see, People v May, 80 NY2d 725, supra [decided today]). However, defendant’s flight may be considered in conjunction with other attendant circumstances, namely, the time, the location, and the fact that defendant was seen removing an instrument known to the police to be used in concealing drugs.” *212In this case, considering the same factors leads to the conclusion that the police pursuit of the defendant was unwarranted. The time was approximately 2 o’clock in the afternoon of an October day. The location, Broadway at the corner of West 164th Street is described as a drug-prone area. The third factor here is "a New Jersey vehicle and a white man approaches a hispanic male”. There were no drug vials, glassine envelopes, or other packages or articles typically containing drugs observed. There was no talk of drugs or code words for drugs. There was no money being exchanged nor hand motions indicative of an exchange of money or drugs. The defendant was not seen to engage in any transaction with any other person. The police officer testified that although he had passed that location many times before, he had never seen the defendant. An "ordinarily prudent and cautious person” would not, in these circumstances, be induced to believe that criminal activity was at hand.
The majority opinion states that I found two additional facts not to be relevant. Neither of them in any way affect this case. One of these was that the police officer who testified had been assigned to the 34th Precinct, an area which, he testified extends from 155th Street to 225th Street bordering the Bronx, as a uniformed officer for approximately 3 Vi years. This is hardly unusual, or particularly significant. The second is that the police department had a special operation targeting narcotics sales to out-of-State residents. This "fact” appears nowhere in the record before the motion court or before our Court in this case. It was not referred to in brief or argument. That operation was part of a different command, not the 34th Precinct. The officers in this case were not assigned to that operation, and there is no indication that they had ever heard of it. The majority are thus correct when they state that I did not find these "facts” relevant in the context of this case. An article from the New York Daily News relating occurrences of April 29, 1993 is similarly irrelevant to analysis of the events of October 9, 1989.
The majority here as did the dissent in People v Madera (189 AD2d 462, 468), seem dissatisfied with existing law as explained by the Court of Appeals. This appears from the following language in the majority’s opinion: "Similarly, the strict application by some of the principle, stated in People v Howard (50 NY2d 583), that when an individual flees from an officer making a lawful inquiry the officer may not, without probable cause, pursue the individual but may only unobtru*213sively observe the individual, has generated much confusion by fostering an unrealistic approach to rapidly escalating street encounters.”
As the majority, speaking through Presiding Justice Murphy, in People v Madera (supra, at 466) observed: "The suggestion that longstanding and recently unanimously reaffirmed law be rejected is not simply extraordinary from a precedential standpoint, but profoundly troublesome from a legal one * * *. The dissenter’s notion that the police may pursue and seize whomever they may approach, would necessarily validate seizures in situations such as the one at bar in which although there is perhaps some basis for inquiry, there exists no reason to suspect a particular person of crime, indeed, in which it has not even been reliably ascertained that any crime has been committed. To permit the seizure of a person, simply because that person asserts his or her undoubted right to be left alone is not merely violative of this State’s common law, but its statutes, its Constitution, and, indeed, the Federal Constitution. Under all of these authorities the absolute minimum predicate required to support the seizure of a civilian is a reasonable suspicion that the person to be seized has committed or is about to commit a crime; it is not, as the dissenter would hold, invariably sufficient that police inquiry however legitimate has been avoided.”
A more troubling element is also present in this case. It is undeniable that a salient factor in the trial court’s denial of the motion to suppress was the Hispanic ethnicity of the defendant, juxtaposed with the "white” ethnicity of the unknown and unpursued driver. Making a determination based upon such a factor is, in our society, simply unacceptable.
Wallace and Rubin, JJ., concur with Ross, J.; Rosenberger, J. P., dissents in a separate opinion.
Judgment, Supreme Court, New York County, rendered May 3, 1990, which, after a jury trial, convicted defendant of criminal possession of a controlled substance in the third degree, and sentenced him to an indeterminate term of imprisonment of 3 to 9 years, affirmed.