People v. Mills , 145 A.D.2d 578 ( 1988 )

— Appeal by the People from an order of the Supreme Court, Queens County (O’Brien, J.), dated March 31, 1988, which granted that branch of the defendant’s omnibus motion which was to suppress physical evidence.

Ordered that the order is affirmed.

The People’s sole witness at the suppression hearing was the arresting officer, James Sikorski. He testified that he witnessed one man approach a person who was subsequently identified as the defendant. He observed the defendant give the other man something in exchange for what appeared to be United States currency. In critical testimony on cross-examination, Officer Sikorski stated:

"Sikorski: I remember a litter shimmer, a reflection from the street light. That is all I remember. * * *

"[Defense counsel]: So what you saw was a shimmer of light? * * *

"Sikorski: Yes. * * *

"[Defense counsel]: Now you didn’t actually see the object itself but rather the shimmer of light from it?

"Sikorski: Correct.”

The officer did not observe the actual object which was passed from the defendant to the other man and it is not reasonably inferable from seeing a shimmer of light that the object passed was a glossine envelope. To establish probable cause to arrest the defendant in this case for a narcotics violation there had to exist indicia that a drug transaction was taking place, other than the fact that the exchange took place in a drug-prone area and was observed by an experienced officer (cf., People v Bittner, 97 AD2d 33). As no such indicia existed in this case, the order appealed from must be affirmed. Bracken, J. P., Lawrence and Balletta, JJ., concur.