ORDERED that the judgment is reversed, on the law, the defendant's motion to suppress physical evidence is granted, and the indictment is dismissed. Contrary to the People's contentions, the arresting officer did not have reasonable suspicion to believe that the defendant had committed or was about to commit a crime (see People v Stevenson, 7 AD3d 820; People v Harris, 149 AD2d 730; People v Lewis, 49 AD2d 558). The officer briefly observed what he initially characterized only as a "bulge" on the right side of the defendant's pants.

ORDERED that the judgment is reversed, on the law, the defendant's motion to suppress physical evidence is granted, and the indictment is dismissed. Contrary to the People's contentions, the arresting officer did not have reasonable suspicion to believe that the defendant had committed or was about to commit a crime ( see People v. Stevenson, 7 A.D.3d 820, 779 N.Y.S.2d 498; People v. Harris, 149 A.D.2d 730, 540 N.Y.S.2d 514; People v. Lewis, 49 A.D.2d 558, 372 N.Y.S.2d 215). The officer briefly observed what he initially characterized only as a “bulge” on the right side of the defendant's pants. Despite this initial characterization, the officer later testified that he thought he had observed a holster, which turned out to be a buckle attached to the right side of the defendant's pants.

Initially, it is noted that the defendant did not waive his right to appeal at the time of the plea. Contrary to the prosecution's contentions, the arresting detective did not have reasonable suspicion to believe that the defendant had committed or was about to commit a crime ( see People v. Harris, 149 A.D.2d 730; People v. Lewis, 49 A.D.2d 558). As the detective sat in an unmarked minivan, he observed the defendant walk past the van, and he noted that the defendant had a bulge in the center of his waistband The detective saw the defendant adjust his clothing around the bulge several times. The detective did not indicate that the bulge had the outline of a weapon, and he was unable to describe it in any further detail.

That being the case, it cannot be said that Officer Loran's independent observations were corroborative of the information received via the transmission (cf. People v. Kinlock, 55 A.D.2d 627, affd 43 N.Y.2d 832; People v. Stroller, 42 N.Y.2d 1052). Nor was there anything suspicious about the defendant's conduct in reaching behind his back (see People v. Johnson, 56 A.D.2d 766; cf. People v. De Jesus, 55 A.D.2d 196), or in stepping back toward the curb (see People v. Blake, 51 A.D.2d 748; see, also, People v. Lewis, 49 A.D.2d 558), in light of the fact that Officer Loran had exited from an unmarked car and was dressed in plainclothes. Although Officer Loran testified that defendant's motions "placed [him] in fear that possibly he had a gun secreted on his person", the test to be applied is an objective one (see People v. Cantor, 36 N.Y.2d 106, 113; see, also, People v. Johnson, supra; CPL 140.50). A limited search for weapons is authorized where a police officer " reasonably suspects that he is in danger of physical injury" (CPL 140.50, subd 3; emphasis supplied), but "Reasonable suspicion is the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe criminal activity is at hand" (People v. Cantor, supra, pp 112-113).

Judgment reversed, on the law and the facts, motion granted, and indictment dismissed. On the record before us, we conclude that the arresting officer did not possess sufficient grounds to reasonably suspect that the defendant was committing, had committed, or was about to commit a crime (see People v Cantor, 36 N.Y.2d 106; People v Rivera, 14 N.Y.2d 441). His testimony at the preliminary hearing did not satisfy the well-settled requirements which would justify a "seizure" in a public place (see People v King, 50 A.D.2d 521; People v Graves, 49 A.D.2d 844; People v Lewis, 49 A.D.2d 558; see, also, People v Cantor, supra), and the addition to that testimony at the suppression hearing of testimony to the effect that at one point defendant had "hitched up" his pants so as to reveal a portion of a gun butt, has all the indicia of having been patently tailored to overcome the defendant's objection (see People v Garafolo, 44 A.D.2d 86, 88; accord People v Manning, 51 A.D.2d 933; see, also, People v McCormick, 39 A.D.2d 590). As we stated in Garafolo (supra, p 88) "We refuse to credit testimony which has all the appearances of having been patently tailored to nullify constitutional objections." Hopkins, Acting P.J., Martuscello, Latham and Damiani, JJ., concur.

I dissent and vote to reverse the judgment, vacate the plea, grant the motion to suppress and dismiss the indictment. This appeal involves again the issue of a search following the observation of a "bulge" in the clothing of the defendant — an issue with which this court is becoming increasingly familiar (see People v Grant, 53 A.D.2d 618), as has become the Appellate Division, First Department (see People v Derrick, 48 A.D.2d 620; People v Batino, 48 A.D.2d 619; People v Lewis, 49 A.D.2d 558; People v Graves, 49 A.D.2d 844; People v Towers, 49 A.D.2d 839; People v King, 50 A.D.2d 521; People v Goings, 51 A.D.2d 901). In this case, the arresting officer testified that he was on automobile patrol in a high-crime area in Brooklyn.

Hence, we must distinguish cases such as Adams v Williams ( 407 U.S. 143), where a search was held to be warranted by previous information known to the officer, leading to his belief that the person searched possessed a gun. The observations by a police officer of a bulge in the pocket (People v King, 50 A.D.2d 521; People v Graves, 49 A.D.2d 844; People v Lewis, 49 A.D.2d 558), even one having the appearance of a "`cylinder type shape'" (People v Batino, 48 A.D.2d 619), or one appearing like the shape of a gun (People v Goings, 51 A.D.2d 901), have been held not sufficient to permit a frisk or search. And in People v Towers ( 49 A.D.2d 839) it was held that an officer was not justified in halting the defendant because of the observation of a bulge in the defendant's dress, even though that action was followed by the defendant's production of the gun and the pointing of it toward the officer.

In a markedly similar case the First Department reversed the conviction on the ground that there was no reasonable basis to suspect that the defendant had committed a crime. In People v Lewis ( 49 A.D.2d 558) the defendant began walking away as a marked police car was cruising in the area. The officer stopped and approached the defendant and "noticed a bulge in his waistband".

The frisk was unlawful, as there was no reasonable basis to suspect that appellant was committing, had committed or was about to commit a crime. (People v Johnson, 30 N.Y.2d 929; People v Batino, 48 A.D.2d 619; People v Lewis, 49 A.D.2d 558; People v Graves, 49 A.D.2d 844.) In People v Goings ( 51 A.D.2d 901), we granted a motion to suppress and dismissed the indictment, despite the testimony by the police that they saw a bulge "that appeared to be in the shape of a gun in [defendant's] right coat pocket".

Such observations provide an insufficient basis for an instantaneous intrusion into defendant's pocket. (See People v Sanchez, 38 N.Y.2d 72; People v Lewis, 49 A.D.2d 558; People v Batino, 48 A.D.2d 619.) Concur — Stevens, P.J., Murphy, Silverman and Lane, JJ.; Kupferman, J., dissents in the following memorandum: