| People v Moran |
| 2009 NY Slip Op 09048 [68 AD3d 786] |
| December 1, 2009 |
| Appellate Division, Second Department |
| The People of the State of New York,Respondent, v Michael J. Moran, Appellant. |
—[*1] Francis D. Phillips II, District Attorney, Goshen, N.Y. (Lauren E. Dunnock and Andrew R.Kass of counsel), for respondent.
Appeal by the defendant from a judgment of the County Court, Orange County (Berry, J.),rendered February 15, 2008, convicting him of criminal possession of marijuana in the thirddegree, upon his plea of guilty, and imposing sentence. The appeal brings up for review thedenial, after a hearing, of that branch of the defendant's omnibus motion which was to suppressphysical evidence.
Ordered that the judgment is affirmed.
The County Court properly denied that branch of the defendant's omnibus motion which wasto suppress physical evidence. "The credibility determinations of a hearing court are entitled togreat deference on appeal, and will not be disturbed unless clearly unsupported by the record"(People v Martinez, 58 AD3d870, 870-871 [2009]; see People vJackson, 65 AD3d 1164 [2009]).
The record supports the County Court's determination that the defendant consented to thepolice entry to his residence (see People v Love, 273 AD2d 842 [2000]). Indeed, thedefendant called the police for assistance following an alleged attempted robbery or burglary athis residence. According to the police officer who responded to the defendant's residence toinvestigate this alleged incident, the defendant "led" the police into the kitchen and living room.While lawfully present in the kitchen and living room, the officer detected an "extremely strongodor of marijuana" and observed marijuana in "plain view" (see People v Brown, 96NY2d 80, 88-89 [2001]; see also Horton v California, 496 US 128, 136-137 [1990]).
Moreover, contrary to the defendant's contention, the seizure of certain physical evidence didnot constitute "fruit of the poisonous tree" (Wong Sun v United States, 371 US 471, 488[1963] [internal quotation marks omitted]; see People v Day, 8 AD3d 495, 496 [2004]).
The defendant's remaining contentions are without merit. Dillon, J.P., Florio, Miller andAngiolillo, JJ., concur.