| People v McLaren |
| 2015 NY Slip Op 06522 [131 AD3d 548] |
| August 12, 2015 |
| Appellate Division, Second Department |
[*1]
| The People of the State of New York,Respondent, v Dwayne D. McLaren, Appellant. |
Barry Krinsky, Brooklyn, N.Y., for appellant.
Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano,Johnnette Traill, Jeanette Lifschitz, Antara D. Kanth, and Emil Bricker of counsel), forrespondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County(Kohm, J.), rendered April 30, 2012, convicting him of criminal possession of a weaponin the second degree, upon a jury verdict, and imposing sentence. The appeal brings upfor review an order of the same court (Griffin, J.), dated June 23, 2014, which, uponremittitur, denied that branch of the defendant's omnibus motion which was to suppresscertain physical evidence. By decision and order on motion dated June 13, 2012, thisCourt, inter alia, granted the defendant's motion to stay execution of the judgmentpending the hearing and determination of the appeal.
Ordered that the judgment is affirmed, and the matter is remitted to the SupremeCourt, Queens County, for further proceedings pursuant to CPL 460.50 (5).
Contrary to the defendant's contention, the police had probable cause to search thedefendant's vehicle and his person. An officer testified at the suppression hearing that hedetected the odor of marihuana emanating from inside the vehicle through the open frontwindows. He further testified that he had been trained in the detection of marihuana andhad made hundreds of drug arrests. Contrary to the defendant's contention, "[t]he odor ofmarihuana emanating from a vehicle, when detected by an officer qualified by trainingand experience to recognize it, is sufficient to constitute probable cause" to search avehicle and its occupants (People v Cuffie, 109 AD3d 1200, 1201 [2013] [internalquotation marks omitted]; People v Robinson, 103 AD3d 421 [2013]; People v Smith, 66 AD3d514 [2009]). Accordingly, the Supreme Court, upon remittitur, properly denied thatbranch of the defendant's motion which was to suppress the marihuana seized from thevehicle and the weapon seized from the defendant's person.
The defendant's claim that certain of the prosecutor's summation remarks deprivedhim of a fair trial is unpreserved for appellate review (see CPL 470.05 [2]; People v Wright, 90 AD3d679 [2011]). In any event, the contention is without merit. The challenged remarkswere either permissible rhetorical comment (see People v Galloway, 54 NY2d396 [1981]), fair response to the arguments and issues raised by the defense (seePeople v Halm, 81 NY2d 819, 821 [1993]), or fair comment on the evidence (seePeople v Ashwal, 39 NY2d 105, 109 [1976]), or, if improper, were not so egregiousas to deprive the defendant of a fair trial (see People v Persaud, 98 AD3d 527, 529[2012]).
[*2] The defendant's remainingcontention is without merit. Dillon, J.P., Sgroi, Cohen and Miller, JJ., concur. [PriorCase History: 36 Misc 3d 448.]