| People v Smith |
| 2016 NY Slip Op 01549 [137 AD3d 442] |
| March 3, 2016 |
| Appellate Division, First Department |
[*1]
| The People of the State of New York,Respondent, v Rashawn Smith, Appellant. |
Seymour W. James, Jr., The Legal Aid Society, New York (William B. Carney ofcounsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), forrespondent.
Judgment, Supreme Court, New York County (Renee A. White, J., at suppressionhearing; Laura A. Ward, J., at plea and sentencing), rendered August 27, 2012,convicting defendant of criminal possession of a controlled substance in the fifth degree,and sentencing him, as a second felony drug offender, to a term of six months,concurrent with five years' probation, unanimously affirmed.
Initially, we find that the record does not establish a valid waiver of defendant's rightto appeal. However, we find that the court properly denied defendant's suppressionmotion.
Defendant asserts that the officers' initial contact with defendant constituted at least acommon-law inquiry, and that it was not supported by the requisite founded suspicion ofcriminality. Defendant's general arguments on probable cause failed to preserve this issue(see People v Tutt, 38 NY2d 1011 [1976]), and the court did not "expresslydecide[ ]" (CPL 470.05 [2]) it (see People v Turriago, 90 NY2d 77, 83-84[1997]). We decline to review this claim in the interest of justice.
As an alternative holding, we reject it on the merits. Defendant was smoking whatappeared to an officer, based on his experience and training, to be a cigar that had beenmodified for the purpose of smoking marijuana. This provided, at a minimum, a foundedsuspicion of criminality justifying a common-law inquiry (see People v Brown,308 AD2d 398 [1st Dept 2003], lv denied 1 NY3d 595 [2004]), even though,from his vantage point, the officer could not determine with certainty whether defendantwas smoking marijuana or an ordinary cigar. After defendant dropped the "blunt," whichthe officer confirmed to be marijuana by its odor, the police had probable cause fordefendant's arrest.
Regardless of whether defendant's behavior at the precinct satisfied the requiredpredicate for a strip search (seePeople v Hall, 10 NY3d 303, 310-311 [2008], cert denied 555 US 938[2008]), the cocaine recovered from defendant was not the product of such a search.When the [*2]police found drugs in defendant's shoe, thiswas still within the scope of an ordinary search incident to arrest (see People v Vega, 56 AD3d578, 580 [2d Dept 2008], lv denied 12 NY3d 763 [2009]), which had not yetprogressed to a strip search. Concur—Tom, J.P., Saxe, Richter and Kapnick,JJ.