| People v Grimes |
| 2015 NY Slip Op 08251 [133 AD3d 1201] |
| November 13, 2015 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vJakim Grimes, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (James P. Maxwell of counsel),for respondent.
Appeal from a judgment of the Supreme Court, Onondaga County (John J. Brunetti,A.J.), rendered March 2, 2012. The judgment convicted defendant, upon his plea ofguilty, of criminal possession of a controlled substance in the third degree and criminalpossession of a controlled substance in the fourth degree.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea ofguilty of criminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]) and criminal possession of a controlled substance in thefourth degree (§ 220.09 [1]). The charges arose from an incident in whichpolice officers detected the odor of marihuana emanating from a vehicle they hadstopped for a traffic violation. Defendant, a passenger in that vehicle, was searched andfound to possess narcotics.
We reject defendant's contention that the police lacked probable cause to stop thevehicle. It is well settled that a traffic stop is lawful where "a police officer has probablecause to believe that the driver of an automobile has committed a traffic violation"(People v Robinson, 97 NY2d 341, 349 [2001]; see Whren v UnitedStates, 517 US 806, 810 [1996]). Here, the police had probable cause to stop thevehicle because they observed the driver pull his car into traffic from its parked positionat the curb without using a turn signal (see Vehicle and Traffic Law§ 1163 [a], [d]; People v Hawkins, 45 AD3d 989, 991 [2007], lv denied9 NY3d 1034 [2008]).
Contrary to defendant's further contention, the police had probable cause to searchhis person inasmuch as "[t]he odor of marihuana emanating from a vehicle, whendetected by an officer qualified by training and experience to recognize it, is sufficient toconstitute probable cause to search a vehicle and its occupants" (People v Cuffie, 109 AD3d1200, 1201 [2013], lv denied 22 NY3d 1087 [2014] [internal quotationmarks omitted]; see People vVirges, 118 AD3d 1445, 1445-1446 [2014]). We reject defendant's contentionthat the odor of unburned marihuana could not serve as the basis for the search (see People v Walker, 128AD3d 1499, 1500 [2015], lv denied 26 NY3d 936 [2015]).
Defendant further contends that the search and seizure were illegal because thepolice officers tailored their testimony to establish probable cause to stop the vehicle.That contention is not preserved for our review (see People v Estivarez, 122 AD3d 1292, 1292 [2014]), andit is without merit in any event. The credibility determinations of the hearing court areentitled to great deference and will not be disturbed unless clearly unsupported by therecord, which is not the case here (see People v Ponzo, 111 AD3d 1347, 1347 [2013]).
Defendant contends that Supreme Court failed to make a proper finding of a priorfelony conviction pursuant to CPL 400.21 inasmuch as the court failed to ask himwhether he wanted to controvert any of the allegations set forth in the CPL 400.21statement. That contention is not preserved for our review (see People vPellegrino, 60 NY2d 636, 637 [1983]; People v Butler, 96 AD3d 1367, 1368 [2012]), and iswithout merit in any event. Defendant admitted the prior felony conviction in open courtduring the plea hearing and, thus, he waived strict compliance with CPL 400.21 (see People v Vega, 49 AD3d1185, 1186 [2008], lv denied 10 NY3d 965 [2008]). Moreover, although thecourt did not formally ask defendant whether he wished to controvert any of theallegations set forth in the CPL 400.21 statement, the record establishes that defendanthad an opportunity to do so (seePeople v Hughes, 28 AD3d 1185, 1185 [2006], lv denied 7 NY3d 790[2006]; see also People vIrvin, 111 AD3d 1294, 1297 [2013], lv denied 24 NY3d 1044 [2014],reconsideration denied 26 NY3d 930 [2015]). Thus, under the circumstances, weconclude that there was the requisite substantial compliance with CPL 400.21 (seeIrvin, 111 AD3d at 1297; Hughes, 28 AD3d at 1185).Present—Centra, J.P., Peradotto, Lindley, Whalen and DeJoseph, JJ.