dissents and votes to affirm the order appealed from, with the following memorandum in which Harwood, J., concurs: The question on this appeal is whether the facts presented provide a reasonable basis for the level of the police conduct exercised. I find that they do not and, accordingly, believe that the hearing court properly granted suppression.
It is well established that the exercise of the common-law right of inquiry not involving either actual or constructive restraint need not be based upon a reasonable suspicion of criminal conduct of the individual (People v Carrasquillo, 54 NY2d 248; People v De Bour, 40 NY2d 210). Nonetheless, even such a limited intrusion and inquiry must be predicated upon the existence of some credible objective facts which support a suspicion that criminal activity is afoot (People v Carrasquillo, supra, at 252-253; People v Medina, 107 AD2d 302, 304). It may not be based upon mere whim or caprice (People v De Bour, supra, at 223).
At bar, I would agree with the Supreme Court that there was no conduct on the part of defendant which warranted the exercise of the right of inquiry. Unlike De Bour, where the defendant, upon approaching the police officers, crossed the street to avoid walking past them, the defendant here made no attempt to avoid contact with Officer Negron, whose police identification was clearly displayed. Further, while it is true that, as in De Bour, the encounter here took place in an area known for narcotics trafficking, it was not a late night encounter, but occurred during the afternoon hours. Moreover, as noted by the Supreme Court, even though the defendant entered the building which was a known drug location, the brevity of his presence therein, 3 to 5 seconds, and the fact that he exited the building with the money still in his hands, makes it clear that the defendant could not have been involved in an illicit drug purchase.
*664Even assuming, arguendo, however, that the circumstances did justify the exercise of Negron’s common-law right of inquiry, the level of intrusion here, where Officer Negron himself testified that he intended to stop the defendant because he believed he had gone into the building to purchase narcotics, went beyond mere inquiry. Thus, it would appear that Negron was operating, not on the basis of the common-law right of inquiry, but on the basis of reasonable suspicion of criminal activity. Regardless of Officer Negron’s beliefs as to the basis for his actions, however, by his conduct in physically removing the defendant from the sidewalk into the adjacent building, he elevated the level of the intrusion from a mere sidewalk encounter into a brief detentive stop which could only be justified by reasonable suspicion that the defendant had engaged in criminal activity (cf., People v Carrasquillo, 54 NY2d 248, supra; People v De Bour, 40 NY2d 210, supra). Although Officer Negron testified that the defendant was free to leave at any time, it is also clear from his testimony that the defendant was upset at the continued questioning and felt he was being harassed. Yet, the officer persisted in questioning him and even removed him into a secluded location to continue his questioning.
Under the circumstances, I find that the arrest here was the product of an unlawful intrusion and that, therefore, the weapon seized and the statement obtained as products thereof were properly suppressed.