The majority opinion well analyzes the situation. While the determination of the United States Supreme Court in California v Hodari D. (499 US —, 111 S Ct 1547, 113 L Ed 2d 690) is the better view, we are constrained by the policy decision of the New York Court of Appeals.
Sullivan, J. P., and Milonas, J., concur with Ellerin, J.; Kupferman, J., concurs in a separate opinion.
Judgment, Supreme Court, New York County, rendered June 19, 1990, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fifth degree, and sentencing him to an indeterminate term of imprisonment of two to four years, unanimously reversed, on the law and the facts, the plea vacated, and the indictment dismissed. The matter is remitted to the trial court for the purpose of entering an order in favor of the accused pursuant *33to CPL 160.50, not less than 30 days after service of this order upon the respondent, with leave during this 30-day period to respondent to move and seek any further stay of the implementation of CPL 160.50 as in the interest of justice is required.