People v Pace

People v Pace 2016 NY Slip Op 06602 Decided on October 7, 2016 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 7, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND SCUDDER, JJ.
846 KA 14-01525

[*1]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.

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