As the officers pursued the defendant, he discarded a gun and ammunition. A suspect's flight alone or even his or her flight in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify pursuit ( see People v. Holmes, 81 N.Y.2d 1056, 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396; People v. Cadle, 71 A.D.3d 689, 894 N.Y.S.2d 910; People v. Hope, 237 A.D.2d 885, 654 N.Y.S.2d 504). However, flight, “combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit” ( People v. Holmes, 81 N.Y.2d at 1058, 601 N.Y.S.2d 459, 619 N.E.2d 396). Under the circumstances of this case, the “tens[ing]” of the defendant's arm “around the vicinity” of his waistband, even coupled with his flight from the officers, did not constitute specific circumstances indicative of criminal activity so as to establish the reasonable suspicion that was necessary to lawfully pursue the defendant ( id.;see People v. Cadle, 71 A.D.3d 689, 894 N.Y.S.2d 910; see also People v. Stevenson, 7 A.D.3d 820, 779 N.Y.S.2d 498; People v. Moore, 176 A.D.2d 297, 574 N.Y.S.2d 400). Since the officers' pursuit of the defendant was unlawful, and the defendant's disposal of the weapon during the pursuit was precipitated by the illegality and was not attenuated from it ( see People v. Cadle, 71 A.D.3d 689, 894
ion that a crime had occurred at the corner of Kondolf and Whitney Streets. Because of the lack of correspondence between defendant's appearance and the description of the suspected drug dealer transmitted to the officers, however, the officers had no basis for concluding that the reported crime had been committed by defendant (see, People v. Buffardi, 92 A.D.2d 899, 901). Defendant's flight did not supply the necessary predicate to justify the officers' pursuit. "Flight alone * * * or even in conjunction with equivocal circumstances that might justify a police request for information (see, People v. Hollman, 79 N.Y.2d 181, 190; People v. De Bour, 40 N.Y.2d 210, 218-220), is insufficient to justify pursuit because an individual has a right `to be let alone' and refuse to respond to police inquiry (see, People v. May, 81 N.Y.2d 725, 727-728)" (People v. Holmes, 81 N.Y.2d 1056, 1058; see also, People v. Howard, 50 N.Y.2d 583, cert denied 449 U.S. 1023; People v. Hooper, 245 A.D.2d 1020; People v. Hope, 237 A.D.2d 885, lv denied 90 N.Y.2d 859). Defendant's act of discarding the jacket during the chase "`was spontaneous and precipitated by the illegality' of the police conduct (People v. Wilkerson, 64 N.Y.2d 749)" (People v. Hooper, supra, at 1021). Thus, we grant the motion to suppress and dismiss the indictment charging defendant with criminal possession of a weapon in the third degree (two counts) (Penal Law § 265.
Police pursuit of an individual "must be justified by reasonable suspicion that a crime has been, is being, or is about to be committed" ( People v. Holmes, 81 N.Y.2d 1056, 1057-1058; see, People v. De Bour, supra, at 223). "`Flight alone * * * or even in conjunction with equivocal circumstances that might justify a police request for information [citations omitted] is insufficient to justify pursuit because an individual has a right "to be let alone" and refuse to respond to police inquiry'" ( People v. Hope, 237 A.D.2d 885, 886, lv denied 90 N.Y.2d 859; see, People v. Holmes, supra, at 1058; People v. May, 81 N.Y.2d 725, 727-728; People v. Hollman, supra, at 190-192). When the police officers approached defendant, they did not have a reasonable suspicion that he had been involved in the commission of a crime.
Contrary to the Presentment Agency's argument, Respondent did not make a conscious and independent decision to abandon the pistol, but instead discarded it in direct response to the pursuit by Avellino (see People v Pirillo, 78 A.D.3d 1424, 1426 [1st Dept. 2010]). To be sure, Respondent's flight alone or even his flight in conjunction with equivocal circumstances that might justify a police request for information is insufficient to justify pursuit (see People v. Holmes, 81 N.Y.2d at 1058, supra; People v. Cadle, 71 A.D.3d 689 [2d Dept. 2010]; People v. Hope, 237 A.D.2d 885 [4th Dept. 1997]). Notwithstanding, this court observes, as other courts have, that flight "combined with other specific circumstances indicating that the suspect may be engaged in criminal activity, could provide the predicate necessary to justify pursuit" (People v. Holmes, 81 N.Y.2d at 1058, supra).
The information Officer Monrad received on the 911 radio call and his observations of defendant leaving the vehicle that the 911 caller had described as the police drove toward the vehicle provided the police with an objective credible reason to approach defendant to request information. ( See People v Hollman, 79 NY2d 181, 190; People v Hope, 237 AD2d 885, 886 [4th Dept 1997], lv denied 90 NY2d 859.) When they learned that defendant did not have a valid driver's license and did not know where the car's owner was, the police were entitled to impound and tow the car for safekeeping.
Id. 50 N.Y.2d at 592. See also, People v. Pines, 99 N.Y.2d 525 (2002) (reasonable suspicion necessary to "justif[y] pursuit"); People v. Ross, 251 A.D.2d 1020 (4th Dept. 1998); People v. Hope, 237 A.D.2d 885 (4th Dept. 1997) (same). See People v. Hollman, 79 N.Y.2d 180, 190 (1992); People v. De Bour, 40 N.Y.2d 210, 223 (1976).
The police here, as in Howard, had the right to make a so-called level two De Bour intrusion,[2] i.e., make inquiry of petitioner (50 NY2d at 589), but they could not without more justify anything other than continued "unobtrusive" observation of petitioner. (50 NY2d at 592; see also, People v Pines, 99 NY2d 525, 526 [2002] [reasonable suspicion necessary to "justif(y) pursuit"]; People v Ross, 251 AD2d 1020 [4th Dept 1998]; People v Hope, 237 AD2d 885 [4th Dept 1997] [same].) Howard has since been limited, especially in its suggestion that police may not in such circumstances take into consideration a suspect's flight from officers before pursuit begins.