PEOPLE v. WELCH (2001)

 Defendant was convicted of criminal possession of a controlled substance in the fifth degree (Penal Law § 220.06[1] ) arising from his possession of a quantity of cocaine that police found in his pocket following his arrest for disorderly conduct.   County Court properly denied defendant's motion to suppress the cocaine.   Contrary to the contention of defendant, the police properly approached defendant, who was using a public telephone on a street corner, to question him. A police officer testified that, a few minutes earlier that evening, he had observed defendant and another man conducting a hand-to-hand transaction in an alleyway in an area known for drug trafficking.   When the officers approached the alleyway, defendant fled on a bicycle.   Defendant's actions provided the officers with a founded suspicion that criminal activity was afoot, and thus the officers at a minimum were entitled to make inquiry of defendant (see, People v. Turner, 275 A.D.2d 924, 713 N.Y.S.2d 439, lv. denied 95 N.Y.2d 939, 721 N.Y.S.2d 615, 744 N.E.2d 151;  see generally, People v. Hollman, 79 N.Y.2d 181, 185, 581 N.Y.S.2d 619, 590 N.E.2d 204).   The officer further testified that, when he sought to question defendant about his identity and presence in the alleyway, defendant became very loud and abusive and began using obscene language as a crowd began to form.   He then placed defendant under arrest for disorderly conduct (Penal Law § 240.20[2], [3] ).   Although several witnesses testified on behalf of defendant that he had not used obscenities or become loud and abusive, that testimony merely raised an issue of credibility that the court resolved in favor of the police.   The court's findings of credibility are entitled to great weight and should not be disturbed where, as here, they are supported by the record (see, People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380;  People v. Love, 273 A.D.2d 842, 710 N.Y.S.2d 491).   Contrary to the contention of defendant, the police had probable cause to arrest him for disorderly conduct (see, People v. McDermott, 279 A.D.2d 361, 719 N.Y.S.2d 76, lv. denied 96 N.Y.2d 803, 726 N.Y.S.2d 381, 750 N.E.2d 83).   The search of defendant was thus authorized as a search incident to a lawful arrest (see, United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427;  People v. Weintraub, 35 N.Y.2d 351, 353-354, 361 N.Y.S.2d 897, 320 N.E.2d 636;  People v. Barclay, 201 A.D.2d 952, 607 N.Y.S.2d 531).

We have examined the contentions of defendant in his pro se supplemental brief and conclude that they lack merit (see, People v. Willis, 261 A.D.2d 946, 690 N.Y.S.2d 796, lv. denied 93 N.Y.2d 1029, 697 N.Y.S.2d 588, 719 N.E.2d 949).

Judgment unanimously affirmed.

MEMORANDUM: