| People v Smith |
| 2009 NY Slip Op 07342 [66 AD3d 514] |
| October 15, 2009 |
| Appellate Division, First Department |
| The People of the State of New York,Respondent, v Robert Smith, Appellant. |
—[*1] Robert M. Morgenthau, District Attorney, New York (Martin J. Foncello of counsel), forrespondent.
Judgment, Supreme Court, New York County (Maxwell Wiley, J., at suppression hearing;Ruth Pickholz, J., at plea and sentence), rendered May 28, 2008, convicting defendant ofcriminal possession of a weapon in the second degree, and sentencing him, as a second violentfelony offender, to a term of seven years, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbingthe court's credibility determinations, which are supported by the record (see People vProchilo, 41 NY2d 759, 761 [1977]). After observing the driver commit a traffic infraction,the police lawfully stopped the vehicle in which defendant was riding and lawfully ordered theoccupants out of the car. Furthermore, the officers smelled marijuana, which gave them probablecause to search the car and its occupants (see People v Badger, 52 AD3d 231 [2008], lv denied 10NY3d 955 [2008]). Regardless of whether the police had probable cause to arrest defendant atthat point, they were justified in attempting to handcuff him when he resisted their efforts bytrying to get back into the car and struggling with the officers (see People v Youmans,228 AD2d 345 [1996]). During the struggle, defendant discarded a firearm, and this action wasnot the product of any unlawful police conduct. Concur—Gonzalez, P.J., Friedman,Moskowitz, Renwick and DeGrasse, JJ.