| People v Francois |
| 2016 NY Slip Op 02680 [138 AD3d 1165] |
| April 7, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vReginal Francois, Appellant. |
Anthony L. Riccio, New York City, for appellant.
P. David Soares, District Attorney, Albany (Michael C. Wetmore of counsel), forrespondent.
Garry, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered January 7, 2014, convicting defendant upon his plea of guilty of the crimeof criminal possession of a forged instrument in the second degree (five counts).
In September 2012, two state troopers conducted a traffic stop of defendant's vehicleafter observing that it had very dark tinted windows, such that the interior was notvisible. Upon making contact with the driver, the troopers detected a strong odor ofmarihuana emanating from the vehicle and inquired about its source. In response, apassenger in the vehicle admitted to having smoked marihuana earlier in the day. One ofthe troopers then ran a check of defendant's license, which revealed that his drivingprivileges had been suspended, and the trooper also tested and confirmed that thevehicle's windows exceeded the statutory tint limit (see Vehicle and Traffic Law§ 375 [12-a] [b] [1]). The trooper then ordered defendant to exit the vehicle.As defendant was doing so, the trooper noticed a wallet on the driver side seat of thevehicle. The trooper searched this wallet, and discovered a Florida driver's license andfour credit cards bearing a different name than defendant had provided. Based upon thetrooper's experience, these appeared to be forged. Defendant was thereafter charged withfive counts of possession of a forged instrument in the second degree. AMapp/Dunaway hearing was held in which defendant argued that thetroopers lacked legal justification to search the wallet and that the evidence obtained as aresult of the search should be suppressed. Defendant further argued that, in light of thePeople's failure to preserve the wallet as evidence, an adverse inference against thePeople should be taken. County Court denied defendant's motion to suppress the walletand [*2]reserved decision on defendant's request for anadverse inference. Defendant thereafter pleaded guilty to all five counts of theindictment, and was sentenced to five concurrent prison terms of 3 to 6 years. Defendantappeals.
We agree with County Court that the search of the wallet was legally justified. Asthis Court has repeatedly held, " '[t]he odor of marihuana emanating from avehicle, when detected by an officer qualified by training and experience to recognize it,is sufficient to constitute probable cause to search a vehicle and its occupants' "(People v Rasul, 121 AD3d1413, 1415 [2014], quoting People v Cuffie, 109 AD3d 1200, 1201 [2013], lvdenied 22 NY3d 1087 [2014]). Where the search of a vehicle is justified by probablecause, officers may also search any of the contents of the vehicle that may conceal thecontraband sought (see United States v Ross, 456 US 798, 825 [1982]; Peoplev Ellis, 62 NY2d 393, 398 [1984]; People v Horge, 80 AD3d 1074, 1075 [2011]). Here, thetrooper testified that he was able to identify the odor of marihuana in the vehicle as aresult of his training and experience as a police officer, and that he had locatedmarihuana secreted within wallets during other searches. This testimony demonstratedthat adequate legal justification existed for the search of the vehicle and its contents,including the wallet (see People v Horge, 80 AD3d at 1074; People v Black, 59 AD3d1050, 1051 [2009], lv denied 12 NY3d 851 [2009]).
Defendant's argument that he was entitled to an adverse inference due to the People'sfailure to preserve the wallet was forfeited by his guilty plea, as County Court had not yetruled on that aspect of the motion at the time of the plea (see People v Hansen, 95NY2d 227, 231-232 [2000]; People v Williams, 214 AD2d 437, 437-438 [1995],lv denied 86 NY2d 805 [1995]; People v Hardy, 187 AD2d 810, 812[1992]). In any event, there was no prejudice to defendant (see People v Haupt,71 NY2d 929, 931 [1988]; People v Cannonier, 236 AD2d 619, 619 [1997],lv denied 89 NY2d 1033 [1997]).
Peters, P.J., Rose and Devine, JJ., concur. Ordered that the judgment isaffirmed.