dissent in a memorandum by Williams, J., as follows: The initial level of police intrusion here — seizure of the person — was unwarranted, and, unlawful. As a consequence, the resulting seizure of physical evidence was also unlawful. The totality of the circumstances: that defendant was a possible witness, not a suspect, to a homicide that occurred several days earlier; that he drove erratically after spending at least three hours in a bar, then parked and opened his car door; and that these events occurred at approximately 4:30 a.m., did not amount to a situation where defendant had to be ordered to exit his car and to place his hands on the hood, without prior inquiry.*
*13"Whenever an individual is physically or constructively detained by virtue of a significant interruption of his liberty of movement as a result of police action, that individual has been seized within the meaning of the Fourth Amendment * * * This is true whether a person submits to the authority of the badge or whether he succumbs to force.” (People v Cantor, 36 NY2d 106, 111, citing Terry v Ohio, 392 US 1.)
The New York Court of Appeals ruled in People v Martinez (80 NY2d 444, 447) that the applicable standard for seizure of the person, short of arrest, is "reasonable suspicion that a crime has been, is being, or is about to be committed”. "Reasonable suspicion” is defined as "that 'quantum of knowledge sufficient to induce an ordinarily prudent and cautious [person] under the circumstances to believe criminal activity is at hand.’ ” (People v Martinez, supra, at 448, quoting People v Cantor, 36 NY2d 106, 112-113, supra.) At no point in the hearing record did the People allege that prior to approaching defendant, they had reasonable suspicion that he had committed or was about to commit a crime.
While it is true that defendant had arguably committed a traffic infraction, he was never questioned about or charged with one. If defendant was indeed approached due to his commission of a traffic infraction, however, then at most, the initial allowable intrusion under these circumstances would have been to ask the defendant to step out of the car for a brief time in order to discuss his traffic infraction (People v Robinson, 74 NY2d 773, 775, cert denied 493 US 966). If he was being approached as a potential witness in the homicide investigation, a lesser degree of intrusion would have been appropriate. Here the police officers, without justification, far exceeded such minimal levels of intrusion.
It being the case that the police acted unlawfully in initially seizing the defendant, the hearing court’s judgment should be reversed, the motion to suppress physical evidence granted, and the indictment dismissed.
A police report prepared by Detective Benedict on the night of arrest, *13but submitted in evidence by the defense, stated that the gun was recovered when defendant was frisked after being ordered out of his car.