People v John Canal

People v Canal 2005 NY Slip Op 09768 [24 AD3d 1034] December 22, 2005 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

The People of the State of New York, Respondent, v John Canal, Appellant.

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Crew III, J.P. 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 3½ 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. [*2]Ordered that the judgment is affirmed.