Opinion
June 20, 1988
Appeal from the Supreme Court, Queens County (Di Tucci, J.).
Ordered that the judgment is modified, on the law, by reversing the conviction for criminal possession of a controlled substance in the seventh degree, vacating the sentence imposed thereon, and dismissing that count of the indictment; as so modified, the judgment is affirmed.
We are satisfied, from the totality of the circumstances of this case, that there was sufficient information to lead a reasonable person who possessed the same expertise as the observing officer to conclude that a crime was being committed and therefore probable cause to arrest existed (see, People v McRay, 51 N.Y.2d 594; People v Brown, 124 A.D.2d 592, lv denied 69 N.Y.2d 744; People v Luccioni, 120 A.D.2d 617, lv denied 68 N.Y.2d 771). The personal observations of the trained and experienced police officer, including the repeated passing of small white packets, commonly used to package narcotics, in exchange for currency on a street corner specifically placed under surveillance by the 115th Precinct Street Narcotics Enforcement Unit was sufficient to establish probable cause (see, People v Robinson, 133 A.D.2d 473; People v Balas, 104 A.D.2d 1039). After having received a radio transmission of the above observations, the arresting officer possessed probable cause to effect the defendant's arrest (People v Lypka, 36 N.Y.2d 210). The spatial and temporal proximity between the first officer's observations of the defendant's drug sales and his subsequent arrest, coupled with the fact that his attire matched the description provided, leave us convinced that the arresting officer's actions were also based upon probable cause (see, People v Blalock, 127 A.D.2d 603, lv denied 69 N.Y.2d 1001; People v Ridley, 124 A.D.2d 610, lv denied 69 N.Y.2d 749). Since the defendant's arrest was proper, the 13 packets of heroin seized upon the search incident thereto were properly ruled admissible.
The defendant argues, and the People concede, that his conviction for criminal possession of a controlled substance in the seventh degree must be vacated as a lesser inclusory count of criminal possession of a controlled substance in the third degree, as they both relate to the possession of the same narcotics (see, People v Lugo, 131 A.D.2d 311, lv denied 70 N.Y.2d 714; People v Gaul, 63 A.D.2d 563). Finally, we have examined the defendant's remaining contention and find it to be without merit (People v Crimmins, 36 N.Y.2d 230). Bracken, J.P., Eiber, Kooper and Harwood, JJ., concur.