PACE, ANTONIO, PEOPLE v

SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department [846] KA 14-01525 PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ. THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, V MEMORANDUM AND ORDER 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. It is hereby ORDERED that the judgment so appealed from is unanimously affirmed. 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 AD2d 825, 825 ; People v Bothwell, 261 AD2d 232, 234-235 , lv denied 93 NY2d 1026 ; see generally CPL 140.10 [1] [a]; People ex rel. Johnson v New York State Div. of Parole, 299 AD2d 832, 834 , lv denied 99 NY2d 508 ), and the police were authorized to search defendant’s person incident to his lawful arrest (see People v Williams, 39 AD3d 1269, 1270 , lv denied 9 NY3d 871 ; Johnson, 299 AD2d at 834 ; Taylor, 294 AD2d at 826 ). The sentence is not unduly harsh or severe. Entered: October 7, 2016 Frances E. Cafarell Clerk of the Court