| People v Howington |
| 2012 NY Slip Op 04533 [96 AD3d 1440] |
| June 8, 2012 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Appellant, v JamellHowington, Respondent. |
—[*1] James K. Weeks, Fayetteville, for defendant-respondent.
Appeal from an amended order of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), dated October 29, 2010. The amended order granted the motion of defendant to suppresscertain physical evidence.
It is hereby ordered that the amended order so appealed from is unanimously affirmed.
Memorandum: Having filed the requisite statement pursuant to CPL 450.50, the Peopleappeal from an amended order granting defendant's motion to suppress the physical evidenceseized by the police after a traffic stop. A Syracuse police officer testified at the suppressionhearing that he stopped a vehicle operated by defendant after observing several traffic infractions,and that he detected the odor of unburned marihuana when he approached the vehicle. Thehearing testimony further established, however, that the only marihuana found in the vehicle wasin a closed plastic bag inside a pocket in defendant's clothing. In addition, the evidence at thesuppression hearing established that defendant drove the vehicle with the windows open forseveral blocks prior to the stop, and that they remained open after the vehicle was stopped by thepolice. Supreme Court expressly stated that it did "not credit the testimony that the [odor] of rawmari[h]uana was present," and the court thus concluded that the officers did not have probablecause to arrest defendant for possession of marihuana. The court therefore concluded that theofficers did not have the right to search defendant incident to an arrest for possession ofmarihuana and granted defendant's motion seeking to suppress the items discovered during thesearch, including the marihuana, money and other drugs possessed by defendant.
Initially, we note that the People raised an alternative basis for the search at the suppressionhearing, but they have "failed to address in their brief on appeal any issues with respect to [thatalternative basis], and thus they are deemed to have abandoned any contentions with respectthereto" (People v Hunter, 92 AD3d1277, 1279 [2012]; see People v Sorrells, 58 AD3d 1080, 1080 n [2009], lvdenied 12 NY3d 921 [2009]). Rather, the People contend on appeal that the court erred insuppressing the evidence because the odor of the unburned marihuana provided probable causefor the search, and that the court erred in refusing to credit the officer's testimony that he smelledthe marihuana. "It is well settled that the suppression court's credibility determinations and [*2]choice between conflicting inferences to be drawn from the proofare granted deference and will not be disturbed unless unsupported by the record" (People v Esquerdo, 71 AD3d1424, 1424 [2010], lv denied 14 NY3d 887 [2010] [internal quotation marksomitted]; see People v McAvoy, 70AD3d 1467, 1467 [2010], lv denied 14 NY3d 890 [2010]; People vLayboult, 227 AD2d 773, 775 [1996]). Here, the court's determination that the officer couldnot have smelled the unburned marihuana is supported by the evidence in the record and wasbased solely upon the court's assessment of the credibility of the witnesses at the suppressionhearing, and we perceive no basis to disturb that determination (see People v Vaughan, 48 AD3d1069, 1071 [2008], lv denied 10 NY3d 845 [2008], cert denied 555 US 910[2008]; see generally People vGerena, 49 AD3d 1204, 1205 [2008], lv denied 10 NY3d 958 [2008]). In viewof our conclusion that the court's determination that the officer could not have detected the odorof unburned marihuana has support in the record and should not be disturbed, we do not addressthe further contention of the People that such odor, combined with defendant's "furtivemovements," justified the search. Present—Smith, J.P., Fahey, Peradotto, Sconiers andMartoche, JJ.