(dissenting). I am in agreement with the conclusion reached in Judge Asch’s dissenting opinion, and with the analysis set forth in that opinion. However, aspects of the majority opinion seem to me to raise issues of sufficient interest to merit further comment.
The majority opinion is clearly correct in its observation that there was nothing about the physical appearance of the plastic bag in the car that made it "suspicious”. What made it an appropriate subject of police interest was the location of the bag in a car occupied by two people, under the driver’s seat with only a small part visible. From the perspective of experienced police officers, part of whose duties are tp make such evaluations, it was clearly reasonable for them to consider the possibility that the plastic bag had been hurriedly shoved under the driver’s seat in an effort to conceal it from their view.
The surrounding circumstances disclose substantial support for the reasonableness of this assessment. This was a nighttime encounter involving a vehicle with a cracked windshield, that had been illegally double parked for some period of time, into which two persons unknown to the police officers had entered at 5 o’clock in the morning. The car was in what a police officer described as a "commercial high crime area”.
The sharply critical comments in the majority opinion with regard to the hearing Judge’s reference to the area as a high crime area seem to me entirely unwarranted. I agree that the term "high crime area” is capable of being improperly utilized in an attempt to justify what might otherwise be unjustifiable intrusions on individual constitutional rights. On the other hand, there are clearly circumstances in which the character of the neighborhood may realistically be considered by the police in evaluating the situation with which they are confronted.
In People v Howard (50 NY2d 583), a decision cited for other purposes in the majority opinion, the Court of Appeals specifically found justified the preliminary police inquiry in part on *30the basis that the event occurred "[i]n an area beset by a high burglary rate” (at p 589). I see no more basis for criticizing the hearing court’s reference to the police testimony as to the character of the neighborhood than there would have been for criticizing the very similar comment by the Court of Appeals in Howard.
Nothing in the foregoing discussion is intended to convey the view that there were sufficient indicia of criminal activity to have justified the police in stopping the vehicle apart from the traffic infractions that they described. What seems to me clear is that the police officers were justified in inquiring as to the contents of the partially concealed plastic bag under all the circumstances that were presented, at least as justified as was the police officer in Howard (supra) in undertaking to request information from the defendant with regard to the purse that he was carrying.
The real question here arises from the nature of the defendant’s response to the inquiry, and whether that response, considered together with the relevant circumstances, justified the police action that was taken. This issue requires a consideration of the holding in Howard (supra), a decision, in my opinion, that has been from time to time relied on for propositions that are not in fact set forth in it. In Howard, the majority of a closely divided court concluded that the flight of someone from police officers approaching him to make a justified inquiry did not give rise to probable cause justifying an arrest, in the absence of other indicia of criminal activity. Contrary to a widely held misunderstanding, the majority did not say that flight may not be considered as bearing on the appropriateness of police action. The precise words of the opinion were (at p 592): "Defendant’s flight, had there also been indicia of criminal activity, would have been an important factor in determining probable cause”.
In the immediate case, the defendant responded to the police inquiry by attempting to conceal the plastic bag that was the subject of the inquiry, and by attempting to deceive the police into believing that they had not seen what they had in fact seen. The officer responded by opening the car door, removing the plastic bag, feeling it, and upon feeling the handle of a gun, removing the gun and arresting the defendant. The specific legal question presented is whether the actions of the defendant in response to the police inquiry, taken together with the other circumstances, gave rise to a *31reasonable suspicion on the officer’s part that the plastic bag contained a weapon. (CPL 140.50 [3].)
In my opinion, the officers had a substantial basis for the belief that the plastic bag contained contraband. I think it a defensible proposition, although I do not reach that issue, that the action of the defendant in attempting to deceive the officer in response to his inquiry, taken together with the relevant circumstances, might well have established probable cause that the bag contained contraband sufficient to have justified an arrest. (See, People v Moore, 47 NY2d 911.)
As to whether the officer had a reasonable basis for the belief that the plastic bag contained a weapon, as distinguished from other contraband, I believe that a reasonably close question is presented. In light of the officer’s testimony that he believed that the bag might have contained a weapon, when considered in light of the totality of the circumstances presented, I think there was an adequate basis for the hearing court’s determination that the police action was justified.
As to the suggestion in the majority opinion that the right of the police officers to look into the car "would be doubtful”, I should have thought that issue had been definitively determined by the decision of the Court of Appeals in People v Cruz (34 NY2d 362, 370). Wholly apart from that controlling authority, it seems to me plainly wrong for this court to inform police officers approaching a car under nighttime conditions in the circumstances disclosed in this record that they may not, as a matter of elementary precaution for their own safety, look into the car to see that which was available to be seen, and within reach of the person being questioned, to ensure that nothing was present that posed a danger to their safety.