| People v Williams |
| 2016 NY Slip Op 08257 [145 AD3d 1188] |
| December 8, 2016 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York, Respondent, vVictor Williams, Appellant. |
Bruce Evans Knoll, Albany, for appellant.
P. David Soares, District Attorney, Albany (Brittany L. Grome of counsel), forrespondent.
Clark, J. Appeal from a judgment of the County Court of Albany County (Herrick,J.), rendered May 6, 2014, convicting defendant upon his plea of guilty of the crime ofcriminal possession of a controlled substance in the third degree (two counts) and theviolation of unlawful possession of marihuana.
On June 3, 2013, two deputies with the Albany County Sheriff's Department stoppeda taxi cab in which defendant was a passenger for traveling in excess of the posted speedlimit. Upon approaching the vehicle and asking the driver and defendant to roll downtheir respective windows, the deputies detected the odor of marihuana and directeddefendant to step out of the vehicle. During or immediately after a search of his person,which resulted in the seizure of several cell phones, 24.9 grams of crack cocaine that wasindividually packaged in plastic tie-off bags and a quantity of marihuana, defendantstated that "the taxi driver had nothing to do with it." Defendant was subsequentlyarrested and indicted on two counts of criminal possession of a controlled substance inthe third degree and one count of unlawful possession of marihuana. Followingdefendant's unsuccessful motion to suppress the physical evidence discovered on hisperson, as well as his statement, defendant proceeded to trial, during which he pleadedguilty as charged. Defendant was thereafter sentenced to concurrent prison terms of6
We affirm. A police officer may lawfully initiate a traffic stop where there isprobable cause to believe that a traffic violation has been committed (see People v Guthrie, 25 NY3d130, 133 [2015]; People v Robinson, 97 NY2d 341, 349 [2001]; People v Issac, 107 AD3d1055, 1057 [2013]), and probable cause exists when an officer actually observes thecommission of a traffic violation (see People v Rasul, 121 AD3d 1413, 1415 [2014]; People v Portelli, 116 AD3d1163, 1164 [2014]; Peoplev Hawkins, 45 AD3d 989, 991 [2007], lv denied 9 NY3d 1034 [2008]).Here, the deputy that initiated the traffic stop testified that, while his car was stationary,he visually estimated that the taxi cab was traveling at a speed of 45 miles per hour, 15miles per hour in excess of the posted speed limit, and that he confirmed this speedthrough the use of rear radar. He also stated that he used front radar, which registered thevehicle's speed at 47 miles per hour. Inasmuch as the deputy's testimony established thathe was trained and certified to visually estimate the speed of a moving vehicle withinfive miles per hour of the actual speed and his estimation was confirmed by both frontand rear radar, probable cause existed to support the stop of the taxi cab in whichdefendant was a passenger (seePeople v Ponzo, 111 AD3d 1347, 1347 [2013]; People v McLean, 99 AD3d1111, 1112 [2012], lv denied 20 NY3d 1013 [2013]; People v White, 40 AD3d535, 536 [2007], lv denied 9 NY3d 883 [2007]; People v Donaldson, 35 AD3d1242, 1242-1243 [2006], lv denied 8 NY3d 984 [2007]).
As for the search of defendant, this Court has long held that "[t]he odor of marihuanaemanating from a vehicle, when detected by an officer qualified by training andexperience to recognize it, is sufficient to constitute probable cause to search a vehicleand its occupants" (People vCuffie, 109 AD3d 1200, 1201 [2013] [internal quotation marks and citationomitted], lv denied 22 NY3d 1087 [2014]; see People v Francois, 138 AD3d 1165, 1166 [2016];People v Rasul, 121 AD3d at 1415-1416; People v Gaines, 57 AD3d 1120, 1121 [2008]; People v Pierre, 8 AD3d904, 905 [2004], lv denied 3 NY3d 710 [2004]; People v Chestnut,43 AD2d 260, 261 [1974], affd 36 NY2d 971 [1975]), and we declinedefendant's invitation to depart from this precedent. Here, the deputies involved in thelawful traffic stop testified that they approached the vehicle from opposite sides,requested that defendant and the driver roll down their respective windows and eachimmediately detected an odor of marihuana emanating from within the vehicle and fromdefendant's person once he exited the vehicle. Contrary to defendant's contention, therecord supports the conclusion that the deputies were sufficiently qualified to identify theodor of marihuana, as they separately testified that they received drug training, whichincluded the identification of marihuana visually and by smell, and had extensiveon-the-job experience recognizing the odor of marihuana. Thus, because the requisiteprobable cause existed for the search, County Court properly denied defendant's motionto suppress the tangible evidence seized from his person (see People v Rasul, 121AD3d at 1416; People v Pierre, 8 AD3d at 906; People v Chestnut, 43AD2d at 261-262).
Defendant also argues that his guilty plea was not knowing, voluntary and intelligentbecause County Court failed to apprise him of the trial-related rights that he waived bypleading guilty (see Boykin v Alabama, 395 US 238, 243 [1969]). However,defendant failed to preserve this argument by making a postallocution motion towithdraw his plea in the several weeks following his guilty plea and leading up tosentencing (see People vConceicao, 26 NY3d 375, 382 [2015]; People v Sommers, 140 AD3d 1537, 1538 [2016], lvdenied 28 NY3d 974 [2016]; People v Walker, 135 AD3d 1244, 1245 [2016]), and areview of the plea colloquy demonstrates that he did not make any statements that castdoubt upon his guilt or called into question the voluntariness of his plea so as to triggerthe narrow exception to the preservation rule (see People v Lopez, 71 NY2d 662,666 [1988]; People v White,139 AD3d 1260, 1260 [2016]; People v Walker, 135 AD3d at 1245). In anyevent, the record as a whole, including the circumstance that defendant pleaded guiltyduring trial, affirmatively demonstrates that defendant knowingly, intelligently andvoluntarily waived his trial-related rights (see People v Pellegrino, 26 NY3d 1063, 1063 [2015];People v Conceicao, 26 NY3d at 383-384).
Defendant next asserts that he was denied the effective assistance of counsel.However, those claims that relate to the voluntariness of defendant's plea are unpreserveddue to his failure to make an appropriate postallocution motion, and those claims that areunrelated to the voluntariness of his plea are foreclosed by his guilty plea (see People v Islam, 134 AD3d1348, 1349 [2015]; Peoplev Watkins, 121 AD3d 1425, 1427 [2014], lv denied 24 NY3d 1124[2015]; People v Lohnes,112 AD3d 1148, 1150 [2013]). With respect to defendant's contention that hissentence is harsh and excessive, given his prior drug-related convictions and that hereceived significantly less than the maximum permissible sentence (see PenalLaw § 70.70 [3] [b] [i]), we discern no abuse of discretion or extraordinarycircumstances warranting a reduction of the sentence (see People v Simmons, 122AD3d 1169, 1169 [2014], lv denied 25 NY3d 1171 [2015]; People v Davis, 83 AD3d1210, 1213 [2011], lv denied 17 NY3d 794 [2011]; People v Manley, 70 AD3d1125, 1125 [2010]). Lastly, although County Court referred to defendant as a secondfelony offender at sentencing, the court actually sentenced defendant as a second felonydrug offender (compare Penal Law � 70.06 [3] [b]; [4] [b] with Penal Law § 70.70[3] [b] [i]) and, thus, the uniform sentence and commitment form must be amendedaccordingly (see People vLabaff, 127 AD3d 1471, 1472 [2015], lv denied 26 NY3d 931 [2015];People v Patterson, 119AD3d 1157, 1159 [2014], lv denied 24 NY3d 1042 [2014]; People v Vasavada, 93 AD3d893, 894 [2012], lv denied 19 NY3d 978 [2012]). The certificate ofconviction must be similarly amended (see People v Gathers, 106 AD3d 1333, 1334 [2013], lvdenied 21 NY3d 1073 [2013]).
Peters, P.J., Garry, Devine and Aarons, JJ., concur. Ordered that the judgment isaffirmed, and matter remitted for entry of an amended uniform sentence and commitmentform and an amended certificate of conviction.