People v. Pace

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 [2002]; People v Bothwell, 261 AD2d 232 , 234-235 [1999], lv denied 93 NY2d 1026 [1999]; see generally CPL 140.10 [1] [a]; People ex rel. Johnson v New York State Div. of Parole, 299 AD2d 832 , 834 [2002], lv denied 99 NY2d 508 [2003]), and the police were authorized to search defendant’s person incident to his lawful arrest (see People v Williams, 39 AD3d 1269 , 1270 [2007], lv denied 9 NY3d 871 [2007]; Johnson, 299 AD2d at 834 ; Taylor, 294 AD2d at 826 ). The sentence is not unduly harsh or severe.

Present — Whalen, P.J., Centra, NeMoyer, Troutman and Scud-der, JJ.