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PEOPLE OF THE STATE OF NEW YORK, res, v. SHEIKARA GRAY, def-app

10-224. PEOPLE OF THE STATE OF NEW YORK, res, v. SHEIKARA GRAY, def-app — Judgment of conviction (James M. Burke, J.), rendered January 9, 2009, affirmed.

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10-224. PEOPLE OF THE STATE OF NEW YORK, res, v. SHEIKARA GRAY, def-app — Judgment of conviction (James M. Burke, J.), rendered January 9, 2009, affirmed.

The court properly denied defendant’s suppression motion. There is no basis for disturbing the court’s credibility determinations, which are supported by the record (see People v. Prochilo, 41 NY2d 759, 761 [1977]). The suppression evidence demonstrates that the police officer had probable cause to believe that defendant had committed a violation on the subway car and in his presence (see CPL 140.10[1] [a]; [2] [a]), and that the officer properly elected to make an arrest rather than issuing a summons based on defendant’s failure to timely produce identification (see People v. Miranda, 19 NY3d 912, 913, n; People v. Soto, 297 AD2d 581 [2002], lv denied 99 NY2d 564 [2002]). Further, having lawfully arrested defendant for a violation committed in his presence, the officer was justified in conducting a search incident to that arrest. This is so regardless of whether there was reason to suspect the presence of weapons or that evidence would be found on defendant’s person (see People v. Weintraub, 35 NY2d 351, 353-354 [1974]; People v. Lewis, 50 AD3d 595, 595 [2008]), and even though defendant was arrested for a violation defined elsewhere than in the Penal Law (see e.g. People v. Taylor, 294 AD2d 825, 826 [2002] [open container ordinance]). While there may be an exception to the search incident to arrest doctrine for certain minor traffic offenses (see People v. Marsh, 20 NY2d 98 [1967]), no such exception is properly applied here (see People v. Troiano, 35 NY2d 476, 478 [1974]; People v. Lewis, 50 AD3d at 596).

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