| People v Lightner |
| 2008 NY Slip Op 09218 [56 AD3d 1274] |
| November 21, 2008 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v TannardLightner and William Turner, Respondents. |
—[*1] The Legal Aid Bureau of Buffalo, Inc., Buffalo (Nicholas T. Texido of counsel), fordefendants-respondents.
Appeal from an order of the Erie County Court (Shirley Troutman, J.), entered February 26,2008. The order, inter alia, granted those parts of the motions of defendants seeking to suppresstangible property.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying those parts of the motions seeking to suppress tangible property and as modified theorder is affirmed, and the matter is remitted to Erie County Court for further proceedings on theindictment.
Memorandum: The People appeal from an order that, inter alia, granted those parts of themotions of defendants seeking to suppress the tangible property underlying the indictmentagainst them. We agree with the People that County Court erred in granting those parts ofdefendants' motions, and we therefore modify the order accordingly. The police were justified intheir initial stop of the vehicle driven by one defendant in which the other defendant was apassenger, based on their observation that a traffic infraction had been committed, i.e., that thevehicle did not display a front license plate as required by Vehicle and Traffic Law § 402(see People v Robinson, 97 NY2d 341 [2001]; People v Romeo, 15 AD3d 420[2005], lv denied 4 NY3d 890 [2005]; People v Sherman, 106 AD2d 416[1984]). Upon reaching the vehicle, one of the police officers detected the odor of marihuana.That police officer's detection of "the smell of marihuana smoke, with nothing more, [was]sufficient to provide [the] officer[, qualified by training and experience,] with probable cause tosearch" the vehicle (People v Chestnut, 43 AD2d 260, 261 [1974], affd 36 NY2d971 [1975]), as well as "its contents" (People v Harrington, 30 AD3d 1084, 1085 [2006],lv denied 7 NY3d 848 [2006]; see People v Morgan, 10 AD3d 369, 370-371[2004]). The search of the vehicle produced the tangible property at issue herein.
Contrary to the contention of the People, however, we conclude that the court properlysuppressed the statement made by defendant William Turner while he was in custody but had notwaived his Miranda rights. "In deciding whether a defendant was in custody at the time astatement was [made], the test is not what the subjective beliefs of the defendant were, butinstead what a reasonable person, innocent of any crime, would have thought if [he or she] were[*2]in defendant's position" (People v Smith, 214 AD2d845, 847 [1995], lv denied 86 NY2d 741 [1995]). Here, Turner was not questioned untilthe police officers were escorting both defendants to the police vehicle after one of the officershad detected the odor of marihuana (see People v Long, 27 AD3d 1053, 1054 [2006],lv denied 7 NY3d 758 [2006]). The record therefore supports the court's determinationthat Turner was in custody, and we further agree with the court that the officer's question toTurner at that time, in response to which Turner made the statement in question, was "designed. . . to elicit [his] inculpatory cooperation" (People v Hardy, 5 AD3d 792,793 [2004], lv denied 3 NY3d 641, 675 [2004]; see Long, 27 AD3d at 1054).Present—Hurlbutt, J.P., Centra, Fahey, Pine and Gorski, JJ.