PEOPLE v. FULLER (2005)

Judgment, Supreme Court, New York County (Bonnie Wittner, J. at hearing;  Roger S. Hayes, J. at plea and sentence), rendered July 18, 2003, convicting defendant of criminal possession of a weapon in the third degree, and sentencing him, as a second violent felony offender, to a term of 5 years, unanimously affirmed.

The court properly denied defendant's suppression motion.   There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).   The police were, at the very least, entitled to detain defendant in order to issue a summons for violation of the Open Container Law (Administrative Code of City of New York § 10-125[b] ).  The officer's action of placing his arm on defendant's back, at waist level, to guide him toward the police car was incidental to such detention and did not constitute a frisk (see People v. Chin, 192 A.D.2d 413, 596 N.Y.S.2d 391 [1993], lv. denied 81 N.Y.2d 1071, 601 N.Y.S.2d 590, 619 N.E.2d 668 [1993] ).   We also note that defendant had been uncooperative in that he failed to comply with the officer's requests (see People v. Bothwell, 261 A.D.2d 232, 690 N.Y.S.2d 231 [1999], lv. denied 93 N.Y.2d 1026, 697 N.Y.S.2d 585, 719 N.E.2d 946 [1999] ).   When the officer felt what he recognized to be a firearm at defendant's waist, he was justified in arresting him for weapon possession.