PEOPLE v. MANIGAULT

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Supreme Court, Appellate Division, First Department, New York.

The PEOPLE of the State of New York, Respondent, v. Derrick MANIGAULT, a/k/a Derrick Johnson, Defendant-Appellant.

Decided: February 10, 1998

Before ROSENBERGER, J.P., and ELLERIN, NARDELLI and RUBIN, JJ. Maura E. Daly, for Respondent. Susan Epstein, for Defendant-Appellant.

Judgment, Supreme Court, New York County (William Leibovitz, J.), rendered July 11, 1996, convicting defendant, after a jury trial, of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony offender, to a term of 3 to 6 years, unanimously affirmed.

 Defendant's suppression motion was properly denied.   We see no reason to disturb the hearing court's credibility determinations, which 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. Sioba, 187 A.D.2d 317, 589 N.Y.S.2d 164, lv. denied 81 N.Y.2d 893, 597 N.Y.S.2d 955, 613 N.E.2d 987).   Since the officers saw a crack vial in defendant's hand, they had probable cause to arrest him (People v. Alexander, 218 A.D.2d 284, 640 N.Y.S.2d 28, lv. denied 88 N.Y.2d 964, 647 N.Y.S.2d 718, 670 N.E.2d 1350).  The search, conducted immediately after defendant was arrested, of a brown paper bag, which defendant had had in his other hand, was incident to such lawful arrest since such property had not yet been reduced to the exclusive control of the police (People v. Wylie, 244 A.D.2d 247, 666 N.Y.S.2d 1;  see also, People v. DeSantis, 46 N.Y.2d 82, 412 N.Y.S.2d 838, 385 N.E.2d 577, cert. denied 443 U.S. 912, 99 S.Ct. 3102, 61 L.Ed.2d 876).

MEMORANDUM DECISION.