| People v Hogan |
| 2016 NY Slip Op 01085 [136 AD3d 1399] |
| February 11, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vMichael Hogan, Appellant. |
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Sherry A. Chase of counsel), fordefendant-appellant.
Frank A. Sedita, III, District Attorney, Buffalo (Daniel J. Punch of counsel), forrespondent.
Appeal from a judgment of the Erie County Court (Sheila A. DiTullio, J.), renderedFebruary 10, 2014. The judgment convicted defendant, upon a nonjury verdict, ofcriminal possession of a weapon in the second degree and unlawful possession ofmarihuana.
It is hereby ordered that the judgment so appealed from is unanimouslyaffirmed.
Memorandum: On appeal from a judgment convicting him following a nonjury trialof criminal possession of a weapon in the second degree (Penal Law§ 265.03 [3]) and unlawful possession of marihuana(§ 221.05), defendant contends that County Court erred in denying hismotion to suppress the loaded handgun seized by the police from his vehicle. We rejectthat contention. It is undisputed that the two arresting officers lawfully stoppeddefendant's vehicle, which had excessively tinted windows in violation of Vehicle andTraffic Law § 375 (12-a) (b). The officers testified at the suppressionhearing that, upon approaching defendant's vehicle after the stop, they detected an odorof marihuana emanating from the vehicle, in which defendant was the sole occupant.After determining that defendant's license was suspended, which provided probablecause for his arrest, one of the officers asked defendant whether he had anything on himthat the officer should know about. In response, defendant said that he had "some blunts"on him. The officer then removed defendant from the vehicle and found a small bag ofmarihuana in defendant's pocket. During a subsequent search of the vehicle, the officersfound a loaded firearm in the glove box.
As defendant acknowledges, the "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] [internal quotation marks omitted], lv denied 22 NY3d1087 [2014]; see People vBlack, 59 AD3d 1050, 1051 [2009], lv denied 12 NY3d 851 [2009]).Here, both arresting officers testified that they had been trained in the detection ofmarihuana by its odor, and both claimed to have smelled marihuana in or aboutdefendant's vehicle. Defendant nevertheless contends that the officers' testimony thatthey smelled marihuana is not credible, and that the search of the vehicle was thereforeunlawful. According to defendant, it is simply "incredible that a one inch square ofmarihuana in a plastic bag in [his] pocket could have produced an odor that could havebeen detected from outside" the vehicle.
It is well settled, however, that "great deference should be given to the determinationof the suppression court, which had the opportunity to observe the demeanor of thewitnesses and to assess their credibility, and its factual findings should not be disturbedunless clearly erroneous" (People v Layou, 134 AD3d 1510, 1511 [2015]; seePeople v Prochilo, 41 NY2d 759, 761 [1977]; People v Gray, 126 AD3d 1541, 1541 [2015]). Here, thesuppression court credited the officers' testimony that they smelled marihuana and, basedon our review of the record, we cannot conclude that the [*2]court's determination in that regard was clearly erroneous orthat the officers' testimony is incredible as a matter of law.
We have reviewed defendant's remaining contentions and conclude that they lackmerit. Present—Whalen, P.J., Peradotto, Carni, Lindley and DeJoseph, JJ.