PEOPLE v. ZAPATA (1998)

Judgment, Supreme Court, New York County (Martin Rettinger, J.), rendered March 25, 1996, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the third degree and criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to concurrent terms of 41/212 to 9 years and 2 to 4 years, unanimously affirmed.

Defendant's suppression motion was properly denied.   As he lawfully approached defendant, and prior to any search, the arresting officer observed defendant “drinking what reasonably appeared to be an alcoholic beverage from an open bottle” (Matter of Johnnie A., 253 A.D.2d 578, 679 N.Y.S.2d 1), contained in a paper bag that was open for the purpose of drinking the beverage, and that observation was coupled with defendant's inability to produce identification.   The arrest of defendant was therefore proper (see also, People v. Fernandez, 193 A.D.2d 896, 597 N.Y.S.2d 778, lv. denied 81 N.Y.2d 1072, 601 N.Y.S.2d 592, 619 N.E.2d 670).

MEMORANDUM DECISION.