dissents and votes to reverse the judgment of conviction, grant that branch of the defendant’s omnibus motion which was to suppress physical evidence, and dismiss the indictment, with the following memorandum: I agree that the hearing court correctly concluded that the police officers acted properly in stopping the livery cab and asking the defendant to alight therefrom after having observed the defendant carrying an object which they reasonably believed to be a weapon (see generally, People v Ingle, 36 NY2d 413, 416-417). However, I believe that the hearing court erred in concluding that the defendant abandoned his possessory and privacy interests in the black bag by passing it to his companion upon being ordered from the car. On the contrary, the conduct of the defendant in failing to attempt to rid himself of the bag as soon as the car in which he was riding was stopped and approached by the police evinced a contrary intent (see, People v Howard, 50 NY2d 583, 593, cert denied 449 US 1023). Indeed, it was not until after he was ordered out of the car that the defendant took the bag, which was located between him and the car door, and handed it to his companion. Under the circumstances, it cannot be said that the actions of the defendant indicated a deliberate intent to divest himself of possession of the bag (cf., People v Wade, 137 AD2d 638; People v Brown, 40 AD2d 527). In fact, it would appear that the defendant’s actions were motivated by nothing other than a desire to safeguard the bag while he was talking to the police. Thus, the People have failed to meet their burden of establishing that the defendant abandoned the black bag (see, People v Howard, supra), and the defendant’s possessory and privacy interests remained intact at the point at which his companion was directed to open the bag.
Contrary to the majority’s position, it is my view that, under the circumstances of this case, the defendant’s admitted possessory interest in the bag, which he did not abandon, bestowed upon him standing to challenge the search of the bag by the police. This is so regardless of the majority’s observation that the bag was subsequently returned to the defendant’s female companion, the person to whom the police ascribed ownership thereof. Indeed, the People did not, and do not, argue that the defendant never had a reasonable expectation of privacy in the bag; they argue simply that he abandoned the privacy right he possessed by handing the bag over to someone else. As previously indicated, I disagree with that contention and with the hearing court’s finding to that effect. Additionally, the cases relied on by the majority are inappo*860site, as they involve either the warrantless search of a premises (see, United States v Salvucci, 448 US 83; People v Wesley, 73 NY2d 351; People v Ponder, 54 NY2d 160), or situations where the item searched had never been in the defendant’s actual, as opposed to legal, possession, and in fact concededly belonged to someone else (see, Rawlings v Kentucky, 448 US 98). Simply put, in my view the defendant’s possessory interest in the bag was paramount to any interest the police, at that point, had in the bag, and thus could not be legally interfered with absent a sufficient predicate (see, Rakas v Illinois, 439 US 128, 138-140). It is submitted that no such predicate existed, and that the conduct of the police in ordering the defendant’s companion to open the bag resulted in a violation of the defendant’s possessory and privacy interests therein. Once the police officers realized that the object they had previously believed to be a weapon was, in fact, nothing more than a black bag, they no longer had any justification for detaining the defendant, nor did they possess the predicate necessary to justify the opening of a closed bag located in the livery cab (see, People v Torres, 74 NY2d 224, 227). Thus, the search of the bag was illegal, as were the seizure of the substance contained therein, the arrest of the defendant, and the search of the defendant incident to that arrest, and all the evidence obtained as a result of this illegal conduct must be suppressed. Since the only offenses with which the defendant was charged relate to his possession of these suppressed items, the indictment against him must be dismissed.