¶1dissents and votes to reverse the judgment, on the law and the facts, grant the motion to suppress and dismiss the indictment with the following memorandum: As pointed out by the majority, the Court of Appeals in People v McRay (51 NY2d 594, 604) concluded that a glassine envelope can be considered “the hallmark of an illicit drug exchange”. However, under the McRayrule, as the majority correctly acknowledges, the mere passing of such an envelope is, in and of itself, insufficient to establish probable cause. Additional relevant behavior *1042or circumstances must be present to raise the level of inference from suspicion to probable cause (People v McRay, supra, pp 601-602; see, also, People v Oden, 36 NY2d 382, 385; cf. People v Bittner, 97 AD2d 33). The McRaycourt, in its opinion, outlined various circumstances which, when coupled with the exchange of a glassine envelope, might give rise to a finding of probable cause. For example, the passage of money in exchange for the envelope might establish probable cause. Evidence of furtive or evasive behavior on the part of the participants in the transaction might similarly be sufficient to justify a finding of probable cause since it is suggestive of consciousness of guilt. And further, if an exchange occurred in an area rampant with narcotics activity, an inference of probable cause might be drawn.
¶2Although I agree that the passage of a tinfoil packet can be considered a “telltale sign” of an illicit drug exchange, in the instant case the officers had little beyond the transfer of the packet to justify their arrest of defendant. Officer Natale did not see any money exchanged between defendant and his companion (cf. People v Crowley, 98 AD2d 628; People v Strik, 96 AD2d 1107; People v Roman, 96 AD2d 953). There was no furtive or evasive behavior on the part of the participants in the transaction such as an attempt to dispose of the contraband. While it was claimed that defendant moved his head slightly to the left or right, such conduct was equivocal at best (cf. People v Alexander, 37 NY2d 202, 204; People v Alston, 84 AD2d 737). And finally, the area where the arrest was effectuated was not an area rampant with narcotics activity. Officer Natale testified that he had made a total of only 30 to 40 drug arrests during his entire five and one-half years with the New York Racing Association. He acknowledged that not all of the arrests were made at Aqueduct. And only five of the arrests involved sale or possession of cocaine. This testimony, although that of a qualified observer, was insufficient to justify the conclusion that Aqueduct Race Track or, for that matter, the stairwell where the arrest occurred, was an area rampant with narcotics activity. The arrest was based on nothing more than the officers’ observation of defendant handing a tinfoil packet to another individual who was characterized by the arresting officers — without any elaboration as to the basis therefor — as the subject of an investigation involving narcotics. Under the McRayrule such facts do not, in my judgment, constitute probable cause to arrest the defendant. Accordingly, I conclude that the motion to suppress should have been granted.