PACE, ANTONIO, PEOPLE v ( 2016 )

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