| People v Valette |
| 2011 NY Slip Op 06947 [88 AD3d 461] |
| October 4, 2011 |
| Appellate Division, First Department |
| The People of the State of New York, Respondent, v EdgarValette, Appellant. |
—[*1]
Cyrus R. Vance, Jr., District Attorney, New York (Grace Vee of counsel), forrespondent.
Judgment, Supreme Court, New York County (Herbert J. Adlerberg, J.H.O., at suppressionhearing; Richard D. Carruthers, J., at jury trial and sentencing), rendered January 28, 2009,convicting defendant of criminal possession of a weapon in the second degree, criminalpossession of a controlled substance in the third degree (two counts), criminal possession ofmarijuana in the fourth degree and criminally using drug paraphernalia in the second degree (twocounts), and sentencing him, as a second felony drug offender, to an aggregate term of nine years,unanimously affirmed.
The court properly denied defendant's suppression motion. During a lawful car stop, thepolice detected the odor of marijuana emanating from the vehicle; moreover, defendant admittedthat he and the codefendant had been smoking marijuana. Accordingly, the police clearly hadprobable cause to search the vehicle under the automobile exception, and this included a searchof the trunk (see United States v Ross, 456 US 798, 825 [1982]; People vLangen, 60 NY2d 170, 180-182 [1983], cert denied 465 US 1028 [1984]; People v Hughes, 68 AD3d 894[2009], lv denied 14 NY3d 841 [2010]). Furthermore, the evidence sufficientlyestablished the officers' familiarity with the smell of marijuana.
The court properly precluded defendant from introducing evidence that the codefendant toldan officer that "everything in the trunk was his." This statement was not admissible as adeclaration against penal interest (see People v Settles, 46 NY2d 154, 167-170 [1978]).Defendant failed to demonstrate that the codefendant, who had already pleaded guilty and beensentenced, still intended to invoke his Fifth Amendment privilege or was otherwise unavailable.Instead, defense counsel simply said she did not wish to call the codefendant. Furthermore, to theextent the statement asserted the codefendant's exclusive possession of the contraband, it did notbear sufficient indicia of reliability, particularly given the codefendant's sworn statement at hisplea proceeding that he and defendant jointly possessed the drugs and weapon. Althoughdefendant also sought to introduce the statement for a purpose other than for its truth, he did notestablish that it was relevant to impeach the credibility of the officer in question. Since thisevidence was neither reliable nor critical to establish defendant's defense, there is no merit todefendant's argument that he was constitutionally entitled to introduce it (see Chambers v[*2]Mississippi, 410 US 284 [1973]; People vRobinson, 89 NY2d 648, 654 [1997]; People v Burns, 18 AD3d 397 [2005], affd 6 NY3d 793[2006]).
Although defendant also sought to introduce a different statement, made by the codefendantto another officer, he did not present any of his current arguments for admissibility. Accordingly,those arguments are unpreserved and we decline to review them in the interest of justice. As analternative holding, we also reject them on the merits for all of the same reasons that apply to thepreviously-discussed statement. Concur—Andrias, J.P., Friedman, Renwick, Richter andManzanet-Daniels, JJ.