PEOPLE v. CANAL (2005)

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 3 1/212 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 A.D.2d 854, 855-856, 484 N.Y.S.2d 321 [1985] [search incident to arrest for violation of open container ordinance] ).

ORDERED that the judgment is affirmed.

CREW III, J.P.

PETERS, SPAIN and MUGGLIN, JJ., concur.