Opinion
10-07-2016
The PEOPLE of the State of New York, Respondent, v. Antonio PACE, Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Benjamin L. Nelson of Counsel), for defendant-appellant. Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Timothy J. Garvin of Counsel), for respondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.), rendered July 16, 2014. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a weapon in the second degree and criminal possession of a weapon in the third degree.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Benjamin L. Nelson of Counsel), for defendant-appellant.
Michael J. Flaherty, Jr., Acting District Attorney, Buffalo (Timothy J. Garvin of Counsel), for respondent.
MEMORANDUM:
On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3] ) and criminal possession of a weapon in the third degree (§ 265.02[3] ), defendant contends that Supreme Court erred in refusing to suppress a handgun and his oral statements to the police. We reject that contention. The police were entitled to arrest defendant for a violation of the local open container ordinance committed in their presence (see People v. Taylor, 294 A.D.2d 825, 825, 741 N.Y.S.2d 822 ; People v. Bothwell, 261 A.D.2d 232, 234–235, 690 N.Y.S.2d 231, lv. denied 93 N.Y.2d 1026, 697 N.Y.S.2d 585, 719 N.E.2d 946 ; see generally CPL 140.10[1][a] ; People ex rel. Johnson v. New York State Div. of Parole, 299 A.D.2d 832, 834, 750 N.Y.S.2d 696, lv. denied 99 N.Y.2d 508, 757 N.Y.S.2d 819, 787 N.E.2d 1165 ), and the police were authorized to search defendant's person incident to his lawful arrest (see People v. Williams, 39 A.D.3d 1269, 1270, 834 N.Y.S.2d 816, lv. denied 9 N.Y.3d 871, 840 N.Y.S.2d 900, 872 N.E.2d 1206 ; Johnson, 299 A.D.2d at 834, 750 N.Y.S.2d 696 ; Taylor, 294 A.D.2d at 826, 741 N.Y.S.2d 822 ). The sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, and SCUDDER, JJ., concur.