Harwood, J., dissents and votes to reverse the judgment, on the law and the facts, to grant that branch of the defendant’s motion which was to suppress physical evidence, and to dismiss the indictment, with the following memorandum: I disagree with the ruling of the Supreme Court, made after a hearing denying that branch of the defendant’s omnibus motion which was to suppress the gun, and with my colleagues in the majority who have voted to affirm that judgment.
The incident which was the subject of the hearing occurred at approximately 12:30 a.m. on December 12, 1985. Detective Neil O’Donnell, who was a police officer at the time of this incident, testified that he was on radio motor patrol serving as driver, with his partner, Officer Antonio Weaver, who served as recorder, when, from a distance of approximately 60 feet, he observed the defendant and two other men standing on a *633street corner having a conversation. O’Donnell testified that while the car he was driving was still moving he observed that a heavy object which "appeared” to him to have the outline of a gun was weighing down the defendant’s right jacket pocket. O’Donnell could not on cross-examination describe the outline but rather insisted that it was his "belief’ based upon his training and previous arrests he made involving gun possession, that there was a "50/50 shot that that was a gun in [the defendant’s] pocket”. Weaver, whose trial testimony was admitted on behalf of the defendant at the suppression hearing pursuant to a stipulation, testified that he also observed the bulge in the defendant’s pocket, but he specifically stated that what he saw was a mere bulge, not the outline of a gun or any part of a gun. When the two approached defendant, Weaver had his gun drawn and O’Donnell told the defendant to "come here”, whereupon the defendant’s eyes lit up and he turned and ran. During the ensuing chase, the defendant dropped the gun which is the premise for the instant prosecution.
I conclude that when Officer O’Donnell told the defendant to "come here”, while Officer Weaver’s gun was drawn, the defendant was effectively seized (see, People v Cantor, 36 NY2d 106, 111; see also, People v Jennings, 45 NY2d 998). And apart from the fact that I find O’Donnell’s testimony that he observed the outline of a gun in the defendant’s coat pocket at night from a moving vehicle at a distance of 60 feet to be tailored to meet constitutional objections (see, e.g., People v Garafolo, 44 AD2d 86, 88; see also, People v Cruz, 158 AD2d 293), it is my view that, absent any indicia of criminal activity, an officer’s "50/50” but otherwise unexplainable belief that a gun is in a person’s pocket is an insufficient predicate to forcibly detain that person or to chase him when he exercised his constitutional right to flee (see, People v Leung, 68 NY2d 734; People v Howard, 50 NY2d 583, cert denied 449 US 1023; People v Terracciano, 135 AD2d 849).
It is also my view that the defendant’s dropping of the gun during the chase was a direct and immediate response to the illegal police conduct rather than an independent act involving a calculated risk (see, People v Boodle, 47 NY2d 398, cert denied 444 US 969; see, People v Archie, 136 AD2d 553; People v McFadden, 136 AD2d 934). I therefore vote to reverse the judgment, and would grant that branch of the defendant’s omnibus motion which was to suppress certain physical evidence, and to dismiss the indictment.