| People v Ponzo |
| 2013 NY Slip Op 07367 [111 AD3d 1347] |
| November 8, 2013 |
| Appellate Division, Fourth Department |
| The People of the State of New York, Respondent, v DallasE. Ponzo, Jr., Appellant. |
—[*1] Frank A. Sedita, III, District Attorney, Buffalo (Matthew B. Powers of counsel), forrespondent.
Appeal from a judgment of the Supreme Court, Erie County (M. William Boller,A.J.), rendered January 6, 2012. The judgment convicted defendant, upon a jury verdict,of criminal possession of a controlled substance in the fifth degree, aggravatedunlicensed operation of a motor vehicle in the second degree, speeding and failure toobey a police officer.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon a juryverdict of, inter alia, criminal possession of a controlled substance in the fifth degree(Penal Law § 220.06 [5]) and aggravated unlicensed operation of a motor vehiclein the second degree (Vehicle and Traffic Law § 511 [2] [a] [iv]). We rejectdefendant's contention that Supreme Court erred in refusing to suppress the crackcocaine seized from the vehicle he was driving. The court's implicit credibilitydeterminations " 'are entitled to great deference on appeal and will not be disturbedunless clearly unsupported by the record' " (People v Bush, 107 AD3d 1581, 1582 [2013]). Thetestimony at the suppression hearing established that the State Troopers observeddefendant driving a vehicle in excess of the posted speed limit, which justified their stopof the vehicle for speeding (seePeople v Williams, 79 AD3d 1653, 1654 [2010], affd 17 NY3d 834[2011]). Thereafter, one of the Troopers, trained in the recognition of marihuana,detected the odor of marihuana when he approached the vehicle, which providedprobable cause to search the vehicle (see People v Chestnut, 43 AD2d 260, 261[1974], affd 36 NY2d 971 [1975]; People v Cuffie, 109 AD3d 1200, 1201 [2013]). Further,the Trooper noticed marihuana "residue" on the driver's side floorboard and seat."Having justifiably stopped the vehicle for [a traffic violation] and having detected theodor of marihuana from inside it, [the Trooper] had reasonable suspicion that the[vehicle] contained drugs and the subsequent canine sniff was proper" (People vGathogo, 276 AD2d 925, 926-927 [2000], lv denied 96 NY2d 734 [2001]).Contrary to defendant's contention, the Trooper's testimony was not "incredible as amatter of law," i.e., " 'manifestly untrue, physically impossible, contrary to experience, orself-contradictory' " (Bush, 107 AD3d at 1582).
We note that defendant's release to parole supervision does not render moot hischallenge to the severity of the sentence because "he 'remains under the control of theParole Board until his sentence has terminated' " (People v Barber, 106 AD3d 1533, 1533 [2013]).Nevertheless, we [*2]conclude that the sentence is notunduly harsh or severe. Present—Centra, J.P., Fahey, Carni, Sconiers andValentino, JJ.