| People v Clanton |
| 2017 NY Slip Op 04579 [151 AD3d 1576] |
| June 9, 2017 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Calvin Clanton, Appellant. |
Timothy P. Donaher, Public Defender, Rochester (Danieli Evans, of the Maryland Bar,admitted pro hac vice, of counsel), for defendant-appellant.
Sandra Doorley, District Attorney, Rochester (Nancy Gilligan of counsel), forrespondent.
Appeal from a judgment of the Monroe County Court (Vincent M. Dinolfo, J.), renderedMay 7, 2015. The judgment convicted defendant, upon his plea of guilty, of criminal possessionof a weapon in the second degree.
It is hereby ordered that the judgment so appealed from is affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a weapon in the second degree (Penal Law § 265.03 [3]).The charges arose from an incident in which police officers detected the odor of marihuanaemanating from a vehicle they had stopped for a traffic violation. Defendant, a passenger in thatvehicle, attempted to flee from the scene upon exiting the vehicle but was detained by theofficers. In response to one officer's pre-Miranda inquiry, defendant admitted topossessing a firearm. The officer then searched defendant and found a loaded firearm on hisperson. County Court subsequently refused to suppress defendant's statement to the police andthe firearm.
Defendant contends that the court should have rejected the officer's testimony offered insupport of the decision of the police to search the vehicle and its occupants inasmuch as therewas no concrete evidence of marihuana possession presented at the suppression hearing. Wereject that contention. It is well established that the odor of marihuana emanating from a vehicle," 'when detected by an officer qualified by training and experience to recognize it, issufficient to constitute probable cause to search a vehicle and its occupants' " (People v Ricks, 145 AD3d 1610,1611 [2016]; see People v Chestnut, 43 AD2d 260, 261-262 [1974], affd 36NY2d 971 [1975]; People v Grimes,133 AD3d 1201, 1202 [2015]; People v Cuffie, 109 AD3d 1200, 1201 [2013], lv denied 22NY3d 1087 [2014]). Here, the officer testified that, as soon as the front passenger-side windowwas rolled down, he "immediately observed the strong odor of burnt mari[h]uana coming fromwithin the vehicle" and contemporaneously saw "what appeared to [him] to be ashes all over[defendant]'s pants, in his lap" (seegenerally People v Ponzo, 111 AD3d 1347, 1348 [2013]; People v Guido, 175AD2d 364, 365 [1991], lv denied 78 NY2d 1076 [1991]). The officer further testified thathe also observed "numerous small remnants of mari[h]uana blunts" in the plastic ashtray in thepassenger-side door (see generallyPeople v Semanek, 30 AD3d 547, 547-548 [2006]). Significantly, the officer alsotestified that he had received "training in the Academy" regarding the "physical characteristicsand odor" of marihuana, and that he had encountered the smell of burnt marihuana "thousands oftimes" in the field. "It is well settled that great deference should be given to the determination ofthe suppression court, which had the opportunity to observe the demeanor of the witnesses and toassess their credibility, and its factual findings should not be disturbed unless clearly erroneous"(People v Layou, 134 AD3d1510, 1511 [2015], lv denied 27 NY3d 1070 [2016], denied reconsideration28 NY3d 932 [2016]). Here, we see "no basis to disturb the court's credibility assessments of theofficer[ ] inasmuch as [n]othing about the officer['s] testimony was unbelievable as a matter oflaw, manifestly untrue, physically impossible, contrary to experience, or self contradictory" (People v Walker, 128 AD3d 1499,1500 [2015], lv denied 26 NY3d 936 [2015] [internal quotation marks omitted]).
We agree with defendant, however, that the court should have suppressed the statementdefendant made to the police in response to police questioning inasmuch as defendant was incustody at the time but had not waived his Miranda rights. After defendant had beenrestrained and handcuffed, an officer asked him, "why are you fighting us," or "[w]hy did you runfrom the car." As noted above, at the time the question was asked, defendant had been physicallyrestrained and handcuffed after he had fled from an attempted body search and had engaged in astruggle with the police, and we therefore conclude that Miranda warnings were required.For purposes of Miranda, "interrogation" refers to "express questioning, but also to anywords or actions on the part of the police (other than those normally attendant to arrest andcustody) that the police should know are reasonably likely to elicit an incriminating responsefrom the suspect" (Rhode Island v Innis, 446 US 291, 301 [1980] [footnotes omitted];see People v Ferro, 63 NY2d 316, 322 [1984], cert denied 472 US 1007 [1985];see also People v Lightner, 56AD3d 1274, 1275 [2008], lv dismissed 12 NY3d 760 [2009]). "Although the policemay ask a suspect preliminary questions at a crime scene in order to find out what is transpiring. . . , where criminal events have been concluded and the situation no longerrequires clarification of the crime or its suspects, custodial questioning will constituteinterrogation" (People v Rifkin, 289 AD2d 262, 262-263 [2001], lv denied 97NY2d 759 [2002]; see People v Bastian, 294 AD2d 882, 884 [2002], lv denied 98NY2d 694 [2002]; People v Soto, 183 AD2d 926, 927 [1992]). Here, the interactionbetween defendant and the officers had traveled far beyond a "threshold crime scene inquiry" (People v Brown, 49 AD3d 1345,1346 [2008]) and, under such circumstances, it was likely that the officer's question "would elicitevidence of a crime and, indeed, it did elicit an incriminating response" (id.; see People v Hardy, 5 AD3d 792,793 [2004], lv denied 3 NY3d 641 [2004], denied upon reconsideration 3 NY3d675 [2004]; see also Lightner, 56 AD3d at 1275).
In spite of the unlawful pre-Miranda custodial interrogation of defendant, wenevertheless conclude that the court was not required to suppress the firearm. Indeed, the courtproperly determined that "[a] cursory search of [d]efendant's person would have resulted infinding the subject gun regardless of any admission by [d]efendant that a gun was on his person."Under the doctrine of inevitable discovery, evidence that would otherwise have been suppressedpursuant to the fruit of the poisonous tree doctrine will be deemed admissible " 'wherethe normal course of police investigation would, in any case, even absent the illicit conduct, haveinevitably led to such evidence' " (People v Garcia, 101 AD3d 1604, 1605-1606 [2012], lv denied20 NY3d 1098 [2013], quoting People v Fitzpatrick, 32 NY2d 499, 506 [1973],cert denied 414 US 1033 [1973]). Here, defendant's statement admitting his possession ofthe handgun was the tainted primary evidence arising from the unlawful pre-Mirandacustodial interrogation and must be suppressed (see People v Stith, 69 NY2d 313, 320[1987]); however, the inevitable discovery doctrine applies to the handgun as secondary evidencearising therefrom (see People v Turriago, 90 NY2d 77, 86 [1997], rearg denied 90NY2d 936 [1997]; People v Dempsey, 177 AD2d 1018, 1019 [1991], lv denied79 NY2d 946 [1992]). We conclude that there was a " 'very high degree ofprobability' " that the officers would have discovered the firearm, which was found insidethe right leg of defendant's pants during a lawful and routine search of defendant's person prior tohis attempted flight (Turriago, 90 NY2d at 86; see People v Beckwith, 303 AD2d594, 595 [2003]; Dempsey, 177 AD2d at 1019; People v Deresky, 134 AD2d 512,512-513 [1987], lv denied 71 NY2d 895 [1988]; cf. People v Bookless, 120AD2d 950, 950-951 [1986], lv denied 68 NY2d 767 [1986]).
Although defendant's statement admitting to the possession of the firearm should have beensuppressed, we conclude that the particular circumstances of this case permit the rare applicationof the harmless error rule to defendant's guilty plea (see Beckwith, 303 AD2d at 595)."[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able todetermine whether an erroneous denial of a motion to suppress contributed to the defendant'sdecision, unless at the time of the plea he states or reveals his reason for pleading guilty"(People v Grant, 45 NY2d 366, 379-380 [1978]). "The Grant doctrine is notabsolute, however, and [the Court of Appeals has] recognized that a guilty plea entered after animproper court ruling may be upheld if there is no 'reasonable possibility that the errorcontributed to the plea' " (Peoplev Wells, 21 NY3d 716, 719 [2013]). In our view, because the firearm was notsuppressed and would have been admissible at trial, there is no reasonable possibility that thecourt's error in failing to suppress defendant's statement admitting possession of the firearmcontributed to his decision to plead guilty (cf. Grant, 45 NY2d at 379-380).
All concur except Lindley and Troutman, JJ., who dissent and vote to reverse in accordancewith the following memorandum.
Lindley and Troutman, JJ. (dissenting). We respectfully dissent. We agree with the majority'sconclusion that County Court erred in denying that part of defendant's omnibus motion seekingsuppression of the statement he made to the police in which he admitted possession of thefirearm. Unlike the majority, however, we cannot conclude that the error is harmless. Where, ashere, "a conviction is based on a plea of guilty[,] an appellate court will rarely, if ever, be able todetermine whether an erroneous denial of a motion to suppress contributed to the defendant'sdecision, unless at the time of the plea he [or she] states or reveals his [or her] reason forpleading guilty. This is especially true when the defendant has unsuccessfully sought to suppressa confession" (People v Grant, 45 NY2d 366, 379-380 [1978]; see People v Wells, 21 NY3d 716,717-718 [2013]; cf. People v Lloyd, 66 NY2d 964, 965 [1985]). In the absence of proof"that [a defendant] would have [pleaded guilty] even if his [or her] motion had been granted,harmless error analysis is inapplicable" (People v Henry, 133 AD3d 1085, 1087 [2015]). Here, there is nosuch proof (see People v Coles, 62 NY2d 908, 910 [1984]; cf. Lloyd, 66 NY2d at965). Although the firearm is admissible and was found on defendant's person (see People vBeckwith, 303 AD2d 594, 595 [2003]), we cannot say that the erroneous denial of themotion to suppress the statement did not contribute to defendant's decision to accept the pleaoffer that was extended to him by the People. We would therefore reverse the judgment, vacatethe plea, grant that part of the omnibus motion seeking to suppress the statement at issue, andremit the matter to County Court for further proceedings on the indictment.Present—Carni, J.P., Lindley, DeJoseph, Troutman and Scudder, JJ.