           SUPREME COURT OF THE STATE OF NEW YORK
             Appellate Division, Fourth Judicial Department

1379
KA 11-01306
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


THE PEOPLE OF THE STATE OF NEW YORK, APPELLANT,

                      V                             MEMORANDUM AND ORDER

BRYAN M. KALIKOW, DEFENDANT-RESPONDENT.


DONALD H. DODD, DISTRICT ATTORNEY, OSWEGO (MICHAEL G. CIANFARANO OF
COUNSEL), FOR APPELLANT.

ANTHONY J. DIMARTINO, JR., OSWEGO, FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Oswego County Court (Walter W.
Hafner, Jr., J.), dated July 19, 2010. The order, among other things,
granted the motion of defendant to suppress evidence and statements.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed.

     Memorandum: On appeal from an order suppressing evidence seized
from defendant along with statements that he made to the police, the
People contend that the warrantless search of defendant was
permissible. As the People correctly contend, the police may lawfully
arrest a person for violating an ordinance and conduct a search
incident to that arrest (see People v Canal, 24 AD3d 1034, lv denied 6
NY3d 846; People v Taylor, 294 AD2d 825; People v Pantusco, 107 AD2d
854, 855-856). If there is no arrest, however, there can be no search
incident thereto (see People v Evans, 43 NY2d 160, 165-166; People v
Erwin, 42 NY2d 1064, 1065). The record here supports County Court’s
determination that a police officer merely issued an appearance ticket
to defendant for violating a municipal open container ordinance and
had no intention of performing a custodial arrest, but that defendant
nevertheless was searched. We therefore cannot agree with the People
that the search was justified as a search incident to a lawful arrest
(see Erwin, 42 NY2d at 1065; cf. Canal, 24 AD3d 1034; Taylor, 294 AD2d
at 826).




Entered:    December 23, 2011                     Frances E. Cafarell
                                                  Clerk of the Court
