| People v Cuffie |
| 2013 NY Slip Op 06209 [109 AD3d 1200] |
| September 27, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York,Respondent, v Victor Cuffie, Appellant. |
—[*1] Sandra Doorley, District Attorney, Rochester (Matthew Dunham of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Frank P. Geraci, Jr., J.),rendered January 7, 2009. The judgment convicted defendant, upon his plea of guilty, ofcriminal possession of a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of criminal possession of a weapon in the second degree (Penal Law §265.03 [3]). The conviction arose out of a traffic stop of a vehicle in which defendantwas a passenger. Defendant contends that County Court erred in refusing to suppress thefirearm that he was charged with possessing. Specifically, defendant contends that thetestimony of the People's witnesses at the suppression hearing was contradictory and thatthe People failed to satisfy their initial burden of establishing the legality of the policeconduct. We reject defendant's contentions. As defendant correctly concedes, the policewere justified in stopping the vehicle based upon the driver's failure to signal hisintention to turn for the requisite distance before the intersection (see Vehicle andTraffic Law § 1163 [b]; see generally People v Horge, 80 AD3d 1074, 1074[2011]; People v Smith, 66AD3d 514, 514 [2009], lv denied 13 NY3d 942 [2010]). Althoughdefendant contends that the stop was pretextual, we reject that contention inasmuch as "atraffic stop is lawful where, as here, 'a police officer has probable cause to believe thatthe driver of an automobile has committed a traffic violation, . . .[regardless of] the primary motivation of the officer' " (People v Binion, 100 AD3d1514, 1515 [2012], lv denied 21 NY3d 911 [2013], quoting People vRobinson, 97 NY2d 341, 349 [2001]).
Additionally, we conclude that the police had probable cause to search the vehicle.Two police officers testified at the suppression hearing that, after the vehicle wasstopped, they approached it from opposite sides and detected the odor of marihuanaemanating from inside the vehicle through the open front windows. Both officers furthertestified that they had been trained in the detection of marihuana and had detected theodor of marihuana on numerous occasions prior to the traffic stop at issue. Contrary tothe contention of defendant, it is well established that "[t]he odor of marihuanaemanating from a vehicle, when detected by an officer qualified by training andexperience to recognize it, is sufficient to constitute probable cause" to search a vehicleand its occupants (People vGaines, 57 AD3d 1120, 1121 [2008] [internal quotation marks omitted]; seePeople v Chestnut, 43 AD2d 260, 261 [1974], affd 36 NY2d 971 [1975];People v Robinson, 103 [*2]AD3d 421, 421-422[2013], lv denied 20 NY3d 1103 [2013]; People v Cosme, 70 AD3d 1364, 1364 [2010], lvdenied 14 NY3d 886 [2010]; People v Lightner, 56 AD3d 1274, 1274 [2008], lvdismissed 12 NY3d 760 [2009]; People v Badger, 52 AD3d 231, 232 [2008], lv denied10 NY3d 955 [2008]). Further, the driver admitted that someone may have smokedmarihuana in the vehicle prior to the stop (see People v George, 78 AD3d 728, 728-729 [2010], lvdenied 16 NY3d 859 [2011]), and the police witnesses testified that the vehiclecontinued to smell of marihuana even after the occupants were removed from the vehicle(cf. People v Smith, 98AD3d 590, 592 [2012]). Notably, the subsequent search of the vehicle yielded 16bags of marihuana under the rear passenger's seat.
With respect to the alleged contradictions in the officers' testimony, we conclude thatsuch contradictions are minor or immaterial to the lawfulness of the police conduct, andthus provide no basis to disturb the court's credibility determinations (see People v Shaw, 66 AD3d1417, 1418 [2009], lv denied 14 NY3d 773 [2010]). In particular, whetherthe police removed the driver from the vehicle before or after they ran his license andregistration is irrelevant inasmuch as the police had probable cause to remove theoccupants from the vehicle and search the vehicle immediately upon detecting the odorof marihuana (see Robinson, 103 AD3d at 421-422; Cosme, 70 AD3d at1364; Badger, 52 AD3d at 232; see also Gaines, 57 AD3d at 1121).Thus, "[a]ccording appropriate deference to [the court's] assessment of witnesscredibility" (Horge, 80 AD3d at 1074), we conclude that the police lawfullysearched the vehicle and that the court therefore properly refused to suppress theevidence recovered therefrom (see George, 78 AD3d at 728-729; Cosme,70 AD3d at 1364; Smith, 66 AD3d at 514). Present—Centra, J.P.,Peradotto, Carni and Lindley, JJ.