Sullivan, J. P. (dissenting). On March 4, 1989, at about 11:30 a.m., Police Officer Breen and his partner were on radio patrol in a marked patrol car, on 141st Street between St Nicholas and Edgcombe Avenues in Manhattan. After they noticed that the car in which defendant was a passenger was missing a front license plate, had a rear "Z plate”, which they knew was often indicative of a rental car, and "wasn’t a late model car” as rental vehicles usually are, they made a U-turn and followed the car. After following for several blocks, the officers’ suspicions were further aroused by defendant’s exit from the car while it was still moving "like it wasn’t going to *177stop”. Defendant jumped out of the car clutching his waist, without closing the door, and the driver continued on. Thinking that defendant’s clutching motion might mean that he had a gun, Officer Breen, who had been sitting in the passenger seat of the police car, exited the vehicle, drew his revolver and ordered defendant to stop. After looking at Breen, defendant ran in the opposite direction from that in which the police car was traveling. Breen chased defendant on foot for about two blocks, at which point defendant dropped a gun, which Breen stopped to retrieve. Breen’s partner, who continued to pursue defendant, first in the patrol car and then on foot, apprehended defendant a few minutes later in a nearby park.
Even assuming, arguendo, that the police officers’ pursuit of defendant was unjustified, we agree with the hearing court nevertheless that the gun discarded by defendant during his flight from the police officers should not be suppressed. The test to be applied in determining whether evidence is discovered as a result of unlawful police conduct and must therefore be suppressed is whether the defendant’s action in ridding himself of the evidence was a spontaneous reaction precipitated by the illegality of the officers’ conduct or a calculated act unprovoked by and attenuated from the illegality. (See, People v Boodle, 47 NY2d 398, 402, cert denied 444 US 969; People v Wilkerson, 64 NY2d 749, 750.) Here, defendant concedes that he dropped the gun after being pursued by police officers for about two blocks. In this period he clearly "had time enough to reflect and formulate a strategy for ridding himself of the incriminating evidence”. (People v Boodle, supra, at 404.) Thus, his disposal of the gun was an "independent act involving a calculated risk” which was not a direct response to the police conduct. (People v Boodle, supra, at 404; see also, People v Graham, 149 AD2d 588, in which the court denied the defendant’s motion to suppress a glove which he dropped as he entered a police car about four minutes after he was approached by the police.)
Defendant’s reliance on People v Howard (50 NY2d 583, cert denied 449 US 1023) is misplaced. In Howard, the defendant held on to a vanity case containing incriminating evidence while being pursued by police. He discarded it only after his pursuers cornered him in a basement as he was looking for a means of escape. Under such circumstances, the court held, the defendant’s act in dropping the case while seeking to open or break down the basement door and window was not an act " 'involving a calculated risk’ rather than a spontaneous *178reaction to the necessity of evading his pursuers”; nor could it be said "that he purposefully divested himself of possession of the vanity case”. (Supra, at 593, citing People v Boodle, supra, at 404.) In People v Torres (115 AD2d 93, 99), upon which the majority relies, the fact that the defendant was cornered by the police was critical to the court’s determination. Here, in contrast, defendant dropped the gun after being pursued by Officer Breen for two city blocks, by which time the latter was losing ground. It is thus clear that defendant’s act of discarding the gun was the result of a purposeful and conscious decision and not an instinctive or spontaneous reaction to police conduct.
Thus, the judgment of conviction should be affirmed.
Carro and Rosenberger, JJ., concur with Ellerin, J.; Sullivan, J. P., and Rubin, J., dissent in a separate opinion by Sullivan, J. P.
Judgment, Supreme Court, New York County, rendered July 19, 1989, reversed, on the law, the motion to suppress granted, and the indictment dismissed.