Defendant got into a scuffle with a police officer who had pulled over the taxi in which defendant was a passenger after the cab went through a taxicab checkpoint without stopping. When the officer opened the rear door of the cab, defendant held a bottle up to the officer's face and said he was "just drinking." Then he extended one leg out of the cab and pushed the officer. During the ensuing tussle, the officer discovered a gun in defendant's waistband.

Supreme Court denied defendant's motion to suppress the gun on the ground that the checkpoint program was constitutional and the taxicab's suspicious activity, i.e., failing to stop at the checkpoint, gave the police a right to investigate further. The court found that:

[t]he bizarre behavior of defendant in thrusting a bottle at the police officer's face only served to heighten that suspicion and finally, when the defendant pushed the police officer aside, that was probable cause to make an arrest. The discovery of the gun resulted directly from the lawful and approved behavior of the police officers in subduing the defendant. Accordingly, the People have clearly demonstrated that the seizure of the property was incidental to a lawful arrest, and suppression is denied.

Disposition of the constitutional question is not necessary to resolve this appeal, and we therefore refrain from addressing that issue (see,Clara C. v. William L., 96 N.Y.2d 244, 250). The court's refusal to suppress the gun was proper, whether or not the taxicab checkpoint program was constitutional, because the gun was revealed as a result of an independent act by defendant that was not in direct response to the police conduct (see, People v. Boodle, 47 N.Y.2d 398, 402, cert denied 444 U.S. 969). In Boodle, the police stopped the defendant on the street, unlawfully, and asked him to get into their car. As they drove off, the defendant threw a gun out of the window. In upholding the denial of the defendant's motion to suppress, the Court of Appeals characterized his attempt to discard the gun as "an independent act involving a calculated risk" ( 47 N.Y.2d at 404). Here, similarly, defendant's assault on the officer constituted a break in the chain of events that would "dissipate the taint" of any illegality (id. at 403, citing Wong Sun v. United States, 371 U.S. 471, 487, quoting Nardone v. United States, 308 U.S. 338, 341). As Supreme Court observed, defendant's conduct provided an independent establishment of probable cause to arrest (see,People v. Cantor, 36 N.Y.2d 106, 111).

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.