(dissenting). I respectfully disagree and would affirm the judgment. While I agree with the majority that at the time of the initial police encounter Lieutenant Frey lacked reasonable suspicion to believe that defendant was engaged in criminal activity, I cannot conclude that immediately prior to the frisk, the circumstances did not warrant a protective frisk.
At the time defendant was initially detained, the police officer had a founded suspicion that criminal activity was afoot and had a right to inquire (People v De Bour, 40 NY2d 210, 223; People v Cantor, 36 NY2d 106, 112-113). After defendant answered some preliminary questions and produced identification, the officer then questioned his companion who was unable to produce identification. After the companion disclosed the contents of the cassette case, Lieutenant Frey explained to both persons that he was investigating a recent larceny and wanted to take them back to the scene to see if they could be identified by the victim. There is evidence in the record to support the suppression court’s conclusion that defendant consented to go, and that determination should be accorded great weight (People v Prochilo, 41 NY2d 759, 761). The officer’s testimony on the consent issue was not incredible as a matter of law nor patently tailored to nullify constitu*912tional objections (see, People v Collins, 137 AD2d 542), and I see no reason to disturb the suppression court’s resolution of credibility issues.
In People v Howington (83 AD2d 756), this court noted that it did not question the soundness of a departmental policy requiring the patdown of all suspects about to enter a police vehicle if applied to one lawfully in custody, but that the policy could not be "employed as justification to search a person impermissibly seized without probable cause for the purpose of transporting him to police headquarters for further interrogation”. In my view, defendant was not impermissibly seized and having consented, the routine frisk was no more than an exercise of the sound policy approved in Howington. (Appeal from judgment of Monroe County Court, Celli, J., at trial; Reed J., on suppression issue — criminal possession of weapon, third degree.) Present — Denman, J. P., Green, Pine, Balio and Lawton, JJ.