PEOPLE v. ORMSBY (2006)

Appeal from a judgment of the County Court of Columbia County (Czajka, J.), rendered December 23, 2002, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the fifth degree.

Defendant pleaded guilty to criminal possession of a controlled substance in the fifth degree arising out of his possession of crack cocaine after being arrested for disorderly conduct and littering.   County Court properly denied defendant's motion to suppress the drugs found on his person that day.   Thus, we affirm.

 Testimony adduced at the suppression hearing established that a police officer observed defendant throwing a water balloon across a moderately busy city street at the beginning of rush hour one afternoon, striking a bus.   This officer then saw defendant throw two more water balloons into traffic at another vehicle.¹  Moreover, again according to this officer, defendant stopped short of hurling a fourth balloon at a tractor trailer as a police cruiser proceeded up the street.   Defendant was immediately arrested for disorderly conduct and littering, at which time he was searched and eight pieces of crack cocaine were retrieved from his pocket.

 Contrary to defendant's contention, the police officer had probable cause to arrest him that afternoon for both disorderly conduct and littering (cf. People v. Delhall, 131 A.D.2d 870, 517 N.Y.S.2d 228 [1987] ).   This being the case, the search was authorized as a search incident to a lawful arrest (see People v. Weintraub, 35 N.Y.2d 351, 353-354, 361 N.Y.S.2d 897, 320 N.E.2d 636 [1974];  People v. Taylor, 294 A.D.2d 825, 826, 741 N.Y.S.2d 822 [2002];  People v. Welch, 289 A.D.2d 936, 734 N.Y.S.2d 768 [2001], lv. denied 98 N.Y.2d 641, 744 N.Y.S.2d 771, 771 N.E.2d 844 [2002];  People v. Brewer, 200 A.D.2d 579, 581, 606 N.Y.S.2d 292 [1994], lv. denied 83 N.Y.2d 869, 613 N.Y.S.2d 130, 635 N.E.2d 299 [1994], cert. denied 513 U.S. 850, 115 S.Ct. 148, 130 L.Ed.2d 88 [1994];  see generally Matter of Jonathan McL., 303 A.D.2d 169, 170, 757 N.Y.S.2d 252 [2003], lv. denied 100 N.Y.2d 506, 763 N.Y.S.2d 812, 795 N.E.2d 38 [2003] ).   Accordingly, his motion to suppress was properly denied.

ORDERED that the judgment is affirmed.

FOOTNOTES

1.   Although defendant's friend testified at the suppression hearing that defendant only threw two water balloons that afternoon, that he was aiming at a person and that traffic was lighter than suggested by the officer, we note that this testimony merely raised a credibility issue for County Court to resolve (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).   We further note that this friend readily acknowledged that defendant in fact hit a moving bus with a water balloon.

CARPINELLO, J.

CREW III, J.P., MUGGLIN, LAHTINEN and KANE, JJ., concur.