| People v Black |
| 2009 NY Slip Op 00899 [59 AD3d 1050] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v Darryl Black,Appellant. (Appeal No. 1.) |
—[*1] Frank J. Clark, District Attorney, Buffalo (Donna A. Milling of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (Penny M. Wolfgang, J.),rendered January 24, 2008. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree and unlawful possession of marihuana.
It is hereby ordered that the judgment so appealed from is unanimously affirmed, and thematter is remitted to Supreme Court, Erie County, for proceedings pursuant to CPL 460.50 (5).
Memorandum: On appeal from a judgment convicting him upon a plea of guilty of criminalpossession of a weapon in the second degree (Penal Law § 265.03 [3]) and unlawfulpossession of marihuana (§ 221.05), defendant contends that Supreme Court erred inrefusing to suppress physical evidence seized as a result of the allegedly illegal stop of hisvehicle. We reject that contention.
At the suppression hearing, two police officers testified that they observed a vehicle stoppedon the side of the road at 11:30 p.m. and that the occupants of the vehicle, defendant and hiscodefendant (People v Rogers, 59 AD3d 1051 [2009]), appeared to be having a "heatedargument" with a man on the street. After the vehicle pulled into a nearby driveway, the officersquestioned the man on the street concerning the argument, and he responded that the occupantsof the vehicle owed him some money. The officers pulled their patrol vehicle in front of thehouse next to the driveway where the vehicle had stopped and approached the vehicle toquestion the occupants with respect to their exchange with the man on the street. According tothe officers, the patrol vehicle was not blocking the driveway, and the overhead lights were notactivated. As the officers approached the vehicle, they smelled the odor of marihuana and, uponquestioning by the officers, defendant admitted to them that he had "smoked weed earlier" in theevening. Upon searching the occupants and the vehicle, the officers recovered two guns andmarihuana.
The suppression hearing testimony of the man on the street, who was employed bydefendant, was contrary to that of the officers. He testified that the patrol vehicle was blockingthe driveway and that its overhead lights were activated. He further testified, however, that hedid not know whether the [*2]vehicle occupied by defendant andhis codefendant was in motion when the lights on the patrol vehicle were activated.
Although defendant contends on appeal that the officers stopped his vehicle, we concludethat the court was entitled to credit the testimony of the officers at the suppression hearing thatthe vehicle was parked when they approached it and that they did not park their patrol vehicle insuch a manner as to block the driveway in which the vehicle was parked (see generallyPeople v Prochilo, 41 NY2d 759, 761 [1977]; People v Alexander, 51 AD3d 1380, 1382 [2008], lvdenied 11 NY3d 733 [2008]). We further conclude that the officers possessed an objective,credible reason to approach the vehicle (see People v Ocasio, 85 NY2d 982, 984 [1995];People v Robinson, 309 AD2d 1228 [2003], lv denied 1 NY3d 579 [2003]) andthat, once the officers smelled marihuana, they had probable cause to search the vehicle and itsoccupants for drugs (see People v Chestnut, 43 AD2d 260, 261-262 [1974], affd36 NY2d 971 [1975]; People vBadger, 52 AD3d 231 [2008], lv denied 10 NY3d 955 [2008]; People v Feili, 27 AD3d 318, 319[2006], lv denied 6 NY3d 894 [2006]). Present—Centra, J.P., Peradotto, Greenand Pine, JJ.