| People v James |
| 2017 NY Slip Op 07637 [155 AD3d 1094] |
| November 2, 2017 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Steven James, Appellant. |
Linda B. Johnson, East Greenbush, for appellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Aarons, J. Appeal from a judgment of the County Court of Albany County (Herrick, J.),rendered September 15, 2014, convicting defendant upon his plea of guilty of the crimes ofattempted criminal possession of a weapon in the second degree and assault in the seconddegree.
Defendant was charged in two separate single-count indictments with assault in the firstdegree and criminal possession of a weapon in the second degree. With respect to the assaultcharge, County Court, after a suppression hearing, denied defendant's motion to suppress certainidentification evidence and statements made by him to law enforcement officials. With respect tothe criminal possession charge, County Court, after a separate suppression hearing, denieddefendant's motion to suppress the firearm and ammunition recovered by police officers. Insatisfaction of both indictments, defendant pleaded guilty to assault in the second degree andattempted criminal possession of a weapon in the second degree. County Court thereaftersentenced defendant on each conviction to a prison term of five years, to be followed by fiveyears of postrelease supervision. The prison terms were ordered to run consecutively. Defendantappeals. We affirm.
Turning first to defendant's challenge to County Court's order denying his motion to suppresscertain statements and identification evidence in connection with the assault conviction, weconclude that defendant's valid waiver of appeal precludes such challenge. The record revealsthat County Court explained to defendant that his right to appeal was "separate and apart" fromthose trial-related rights he was forfeiting upon his guilty plea. Defendant executed a writtenwaiver of appeal and County Court confirmed that defendant read and understood its contents.Accordingly, we find that the appeal waiver was valid (see People v McRae, 150 AD3d 1328, 1329 [2017], lvdenied 29 NY3d 1093 [2017]; People v Mahon, 148 AD3d 1303, 1303 [2017]; People v Taylor, 144 AD3d 1317,1318 [2016], lv denied 28 NY3d 1151 [2017]). To that end, defendant's valid appealwaiver forecloses his challenge to County Court's adverse suppression ruling (see People vKemp, 94 NY2d 831, 833 [1999]; People v Stone, 105 AD3d 1094, 1094 [2013]).
As to defendant's challenge to County Court's suppression ruling related to the attemptedcriminal possession of a weapon conviction, we initially note that defendant did not waive hisright to appeal in connection with this conviction and, therefore, such challenge survives hisguilty plea (see People v King, 137AD3d 1424, 1425 [2016], lv denied 27 NY3d 1070 [2016]). We neverthelessconclude that it is without merit. "It is fundamental that probable cause exists for a traffic stop ifan officer observes a defendant committing a traffic violation" (People v Williams, 132 AD3d1155, 1155 [2015] [internal quotation marks and citation omitted], lv denied 27NY3d 1157 [2016]; see People vWynn, 149 AD3d 1252, 1254 [2017], lv denied 29 NY3d 1136 [2017]; People v Rasul, 121 AD3d 1413,1415 [2014]). At the suppression hearing, the officer who pulled defendant over testified that hewas behind defendant's vehicle and saw it "weaving in and out of the lane." In particular, theofficer observed defendant's vehicle "mov[e] from the lane all the way across the double yellowline, back all the way across over the fog line and doing this several times." When asked how fardefendant crossed over the double yellow line, the officer responded, "approximately a foot,maybe two feet." The officer believed that, based on such movements, defendant "appeared toeither be on the cell phone or impaired." County Court credited the officer's testimony, and weaccord great deference to County Court's factual findings and credibility determinations (see People v Horge, 80 AD3d1074, 1074 [2011]). Based on the foregoing, we find that the officer had a reasonable basisto stop defendant's vehicle (see Vehicle and Traffic Law § 1128 [a];People v Ogden, 250 AD2d 1001, 1001 [1998]), and that the denial of the motion tosuppress was proper.
We also reject defendant's assertion that he was unreasonably detained following the initialtraffic stop. The officer testified that after stopping defendant, he ran a computer check ofdefendant's license and registration and learned that the registration was suspended due to a lapsein automobile insurance coverage.[FN*] The officer questioned defendant about thislapse and defendant explained that he was aware of the problem and that the vehicle was actuallyinsured. The officer gave defendant an opportunity to call an insurance agent to verify whetherthere was valid insurance. The officer testified that he asked defendant to exit the vehicle so thathe could hear defendant's conversation with the insurance agent. The officer stated that, as thistelephone conversation took place, he was standing "down wind" from defendant and detected anodor of marihuana. In light of the officer's testimony that he was familiar with the smell ofmarihuana and was trained to detect it, we find that, upon detecting the odor of marihuana, theofficer had probable cause to continue the seizure of defendant for further investigation. To thatend, taking into account that the officer gave defendant a chance to explain the issue of thelapsed insurance, we conclude that defendant's detention following the initial traffic stop was notprolonged beyond what was reasonable under the circumstances (see People v Whalen, 101 AD3d1167, 1167-1168 [2012], lv denied 20 NY3d 1105 [2013]; People v Carter, 60 AD3d 1103,1104-1105 [2009], lv denied 12 NY3d 924 [2009]; People v Ross, 228 AD2d718, 718-719 [1996], lv denied 88 NY2d 993 [1996]). Defendant's remaining argumenthas been examined and determined to be without merit.
Garry, J.P., Egan Jr., Devine and Rumsey, JJ., concur. Ordered that the judgment isaffirmed.
Footnote *:A driver is guilty of violatingVehicle and Traffic Law § 319 (1) by operating a vehicle that does not maintain therequisite insurance.