(dissenting). We are, once again, confronted with the right of police to conduct a search where there is a street encounter. This time, however, the evidence indicates a somewhat different context.
Defendant was arrested and charged with possession of a gun. He moved for an omnibus hearing to suppress the gun and certain statements alleged to have been made by him to the arresting officer. Initially, the motion was denied without a hearing. The motion court thereafter reversed itself. The hearing court, after listening to the testimony, denied the motion to suppress physical evidence. It granted, in part, the motion to suppress the statements made. Thereafter, defendant pleaded guilty to the charge. Only the motion to suppress physical evidence is now before us.
At the hearing, Police Officer Robert Baile testified that he and his two partners were on anticrime patrol in an unmarked police car on August 26, 1981 in the 40th Precinct. At or about 11:50 p.m., they were called to 630 East 138th Street in The Bronx with the report of a “past robbery” of a moped. In proceeding to the scene the police vehicle went in an easterly direction. Since 630 was on the northerly side of 138th Street, the vehicle made a U-turn and came to a stop on the sidewalk in front of a store located at the scene. Baile stated that as the automobile halted, he heard a whistle which he interpreted as a signal, and then someone called out “Police”.
The other two officers, both of whom were sitting in the front seat, emerged from the car quite quickly and walked over to a young man who was standing in the vicinity of the store holding on to a red motorcycle surrounded by a group of black and Hispanic males, and started to question him. Baile, whose eyes settled on defendant, observed that he was sitting on a ledge inside the store, holding a black bag. Defendant arose, placed the bag on the ledge and walked outside the store to the edge of the crowd, a distance of about three feet. In Baile’s words “he *479seemed to me to quickly get rid of the bag by putting it down and getting away from it”. Baile then exited from the vehicle, entered the store, which he described as a “pinball shop” and picked up the bag. Feeling it from the outside, he suspected the presence of a gun. He opened the bag and confirmed his suspicion. He then went over to where defendant was standing and arrested and handcuffed him. A search of defendant disclosed the presence of bullets in defendant’s rear trouser pocket.
Defendant’s testimony was wholly at variance with that given by Baile. Defendant stated that he had just completed work at a candy store where he was employed, which was located approximately 125 yards from 630 East 138th Street. He, his friend Alphonso, who owned a red Yamaha motorcycle, and another friend, Mike Medina, were walking toward defendant’s house. The motorcycle was between Alphonso and defendant as they walked. When they came abreast of 630, they were stopped by the three policemen. One started to question Alphonso with respect to the “papers” for the motorcycle while the other two officers entered the store which defendant described as a social club called the “Diamente”. Shortly thereafter they emerged with a black bag which one of the police officers insisted was the defendants. The bag was opened and inside there was a gun. Defendant was then arrested, handcuffed and placed in the police vehicle. Throughout his testimony defendant insisted that he never owned or possessed the gun or the bag, although he conceded that the gun was a .32 caliber weapon, as were the bullets found in his pocket.
The hearing court credited the testimony of Baile and discredited that of defendant. Based on those findings, it concluded that the pinball arcade was a public place in which defendant had no expectation of privacy. It concluded further that defendant’s actions were sufficiently suspicious in nature to give rise to the seizure of the bag and the search to ascertain its contents, citing People v Benjamin (51 NY2d 267). While we agree with the findings of the hearing court and are in accord with the end result reached by it, we prefer to place our conclusion on other grounds.
We may start with the premise that here, as in People v Howard (50 NY2d 583), defendant’s actions were prompted by police presence. Unlike Howard, however, they were not motivated by police pressure. When defendant placed the bag on the ledge and moved outside the pinball shop, he undertook to divest himself of its possession. This was a deliberate and calculated step to enable him to disclaim ownership in the event that he *480was questioned as to the bag’s contents (see, People v Boodle, 47 NY2d 398; People v Berry, 87 AD2d 53; People v Patino, 97 AD2d 552). Indeed, his testimony throughout ..the hearing is based on the claim that the bag was not his and that he had not been in the pinball shop that night. Thus, it is plain that he abandoned the bag. As a result of this action, he ceased to have such interest, either proprietary or possessory, in the bag as to give him standing to suppress its contents (People v Ponder, 54 NY2d 160; United States v Salvucci, 448 US 83). Indeed, this conclusion is buttressed by the fact that in Boodle there was an underlying illegal act, the seizure of defendant. Here there is none. Baile, coming upon the scene in an area undisputed to be crime prone, heard first the whistle and then the cry of “police”. He then observed defendant sitting on a ledge holding a bag. He saw defendant arise from the ledge on which he was sitting, place the bag on the ledge and move outside the pinball shop to the edge of the crowd. Although he did not then know what was in the bag, the circumstances gave rise to the reasonable suspicion that the law would not look with favor on its possession (cf. People v De Bour, 40 NY2d 210). To this experienced police officer it led to the conclusion that defendant was endeavoring to position himself so that he could disclaim ownership in the event such a disclaimer became necessary.
Our brethren in the majority make much of the fact that defendant moved only a distance of some feet when Baile seized the bag. However, abandonment is not to be measured by feet but by intention. Here, the intention was clear. Indeed, the disclaimer of ownership makes clear that this was the line of defense to be pursued, should defense become necessary. In these circumstances, we are of the opinion that the search of the bag violated no privacy right of defendant and that the motion to suppress was properly denied.
Murphy, P. J., and Asch, J., concur with Fein, J.; Bloom and Kassal, JJ., dissent in an opinion by Bloom, J.
Judgment, Supreme Court, Bronx County, rendered on September 13, 1982, reversed, on the law, the plea and sentence vacated, the motion to suppress granted, and the indictment dismissed.