| People v Ricks |
| 2016 NY Slip Op 08756 [145 AD3d 1610] |
| December 23, 2016 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York, Respondent, vAllen L. Ricks, Jr., Appellant. |
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of counsel), fordefendant-appellant.
Allen L. Ricks, Jr., defendant-appellant pro se.
Kristyna S. Mills, District Attorney, Watertown (Nicole L. Kyle of counsel), forrespondent.
Appeal from a judgment of the Jefferson County Court (Kim H. Martusewicz, J.),rendered December 16, 2013. The judgment convicted defendant, upon his plea of guilty,of attempted criminal possession of a controlled substance in the third degree andattempted criminal possession of a weapon in the second 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 attempted criminal possession of a controlled substance in the third degree(Penal Law §§ 110.00, 220.16 [1]) and attempted criminal possessionof a weapon in the second degree (§§ 110.00, 265.03 [3]). We agreewith defendant that the waiver of the right to appeal was not valid inasmuch as the"inquiry made by [County] Court was insufficient to establish that the court engage[d]the defendant in an adequate colloquy to ensure that the waiver of the right to appeal wasa knowing and voluntary choice" (People v Sanford, 138 AD3d 1435, 1436 [2016] [internalquotation marks omitted]), and because " '[t]he court [also] did not inquire ofdefendant whether he understood the written waiver or whether he had even read thewaiver before signing it' " (id., quoting People v Bradshaw, 18 NY3d257, 262 [2011]). However, defendant failed to preserve for our review hiscontention that his plea was not knowing, intelligent and voluntary because he did notmove to withdraw the plea or to vacate the judgment of conviction (see People v Laney, 117 AD3d1481, 1482 [2014]), and this case does not fall within the rare exception to thepreservation requirement (see People v Lopez, 71 NY2d 662, 666 [1988];Sanford, 138 AD3d at 1436).
Defendant further contends in his main and pro se supplemental briefs that the courterred in refusing to suppress the evidence seized from defendant and the trunk of hisvehicle because the police did not have probable cause to search defendant or his vehicle.We reject that contention. The record establishes, and defendant does not dispute, thatthe arresting officer was entitled to stop defendant's vehicle based on a violation of theVehicle and Traffic Law (seePeople v Raghnal, 135 AD3d 1168, 1168-1169 [2016], lv denied 27NY3d 1137 [2016]; see also Vehicle and Traffic Law § 375 [31]; see generally People v Cuffie,109 AD3d 1200, 1201 [2013], lv denied 22 NY3d 1087 [2014]). We alsoconclude that, following the traffic stop, the officer had probable cause to searchdefendant and the vehicle. Contrary to defendant's contention, it is well established that"[t]he odor of marihuana emanating from a vehicle, when detected by an officer qualifiedby training and experience to recognize it, is sufficient to constitute probable cause tosearch a vehicle and its occupants" (Cuffie, 109 AD3d at 1201 [internal quotationmarks omitted]; see People v Chestnut, 43 AD2d 260, 261-262 [1974],affd 36 NY2d 971 [1975]; see also People v Mack, 114 AD3d 1282, 1282 [2014],lv denied 22 NY3d 1200 [2014]). The remaining contentions of defendant,including those raised in his pro se supplemental brief and reply brief, are not preservedfor our review (see CPL 470.05 [2]), and we decline to exercise our power toreview those contentions as a matter of discretion in the interest of justice (seeCPL 470.15 [3] [c]). Present—Peradotto, J.P., Carni, Curran, Troutman andScudder, JJ.