People v. Abdelah

Appeal by defendant from a judgment' of the Supreme Court, Kings- County, .rendered January 21, .1972, convicting him of criminal' possession of a-dangerous' drug .in the fourth degree, upon a guilty plea, and imposing sentence. Case-remanded to the Criminal Term for a further' hearing and a new determination, .in accordance with the views -herein set forth. In the interim, appeal held in abeyance. A police officer,- the only witness to testify at. the suppression hearing, testified that' at some unspecified time of day he observed defendant in- conversation with two-other males. The men stopped about 10 feet from the witness and his fellow officer. Defendant took a manila envelope from his -pocket,, removed a-small -tin foil packet therefrom- and handed -it to his companion.' As defendant was deceiving money from his companion the officers approached and identified themselves. Defendant thereupon dropped the-manila, envelope to the. ground. It was retrieved by the witness, who looked inside the; envelope, -observed nine more tin.foil packets . therein and placed defendant under arrest. Laboratory - tests indicated that the *668 packets contained heroin. This evidence, even when viewed most favorably .to the People, does not provide a factual basis for a holding that defendant had abandoned the manila envelope (cf. People v. Anderson, 24 H Y 2d 12; People v. Baldwin, 25 N Y 2d 66, 70). The officer’s observations, standing alone, did not furnish probable cause for an arrest (see People V. Gorrado, 22 H Y 2d 308). However, there were indications at the hearing that, básed upon prior observations made of defendant, the officer had reason to believe that defendant was- a seller of narcotics. Those indications, together with the witness’ observation of the apparent sale of a tin foil packet, may well havé furnished a valid basis for the arrest (see People v. Meyers, 38 A D 2d 484). Accordingly, the case should be remanded to the Criminal Term to permit the taking of additional testimony as to the probable cause for the. arrest and, at the conclusion of such reopened hearing, the Criminal Term should make specific findings of fact and conclusions of law (see People v. Landy, 38 A D 2d 962; People v.'Lombardi, 18 A D 2d 177). Hopkins, Acting P. J., Munder, Martuscello/Tiatham and. Shapiro, JJ., concur.