People v. Canal

24 A.D.3d 1034, 805 N.Y.S.2d 731

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 22, 2005
• Status: Published

Opinion

Crew III, J.E

Appeal from a judgment of the Supreme Court (Lamont, J.), rendered August 1, 2003 in Albany County, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

Defendant was observed on Dana Avenue in the City of Albany drinking beer from a bottle. He was arrested for violating the City of Albany’s open container ordinance, and a subsequent search of his person revealed nine pieces of crack cocaine. As a consequence, defendant was indicted and charged with criminal possession of a controlled substance in the third and fifth degrees. Following a Dunaway/Mapp hearing, where defendant unsuccessfully sought to suppress the cocaine, he pleaded guilty to criminal possession of a controlled substance in the fifth degree and was sentenced, as a second felony offender, to an indeterminate term of imprisonment of SVa to 7 years. Defendant now appeals.

We affirm. Contrary to defendant’s assertion, where, as here, the police arrest a person for an offense committed in their presence, they are justified in conducting a search incident to that arrest (see People v Pantusco, 107 AD2d 854, 855-856 [1985] [search incident to arrest for violation of open container ordinance]).

Peters, Spain and Mugglin, JJ., concur. Ordered that the judgment is affirmed.