Opinion
5238
February 1, 2005.
Judgment, Supreme Court, New York County (Bonnie Wittner, J., at hearing; Roger S. Hayes, J., at plea and sentence), rendered July 18, 2003, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a term of five years, unanimously affirmed.
Before: Buckley, P.J., Andrias, Nardelli, Gonzalez and Sweeny, JJ., concur.
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). The police were, at the very least, entitled to detain defendant in order to issue a summons for violation of the Open Container Law (Administrative Code of City of NY § 10-125 [b]). The officer's action of placing his arm on defendant's back, at waist level, to guide him toward the police car was incidental to such detention and did not constitute a frisk ( see People v. Chin, 192 AD2d 413, lv denied 81 NY2d 1071). We also note that defendant had been uncooperative in that he failed to comply with the officer's requests ( see People v. Bothwell, 261 AD2d 232, lv denied 93 NY2d 1026). When the officer felt what he recognized to be a firearm at defendant's waist, he was justified in arresting him for weapon possession.