(dissenting). So far as is apparent to me, this case does not differ in essential detail from People v Hester (71 AD2d 121, 122), where this court held that the mere transfer of glassine envelopes absent other "solid evidentiary factors * * * is insufficient as probable cause for arrest for criminal possession of a controlled substance”. Accordingly, we reversed the denial of a motion to suppress, granted the motion as a matter of law and dismissed the indictment. In People v McRay (— AD2d —, appeal No. 7420, decided Feb. 1, 1980), we followed Hester.
As a member of the McRay Bench, I concurred in the result. However, because of personal misgivings as to the soundness of the Hester rule, I did so only under constraint of that case. Because I feel myself bound by the results reached in Hester and McRay, I would, under constraint of those cases, reverse the judgment of Criminal Term, vacate the guilty plea, grant the motion to suppress and dismiss the indictment.
Sandler and Carro, JJ., concur with Sullivan, J.; Birns, J. P., and Bloom, J., dissent in an opinion by Bloom, J.
Judgment, Supreme Court, New York County, rendered on December 13, 1977, affirmed.