| People v Kaid |
| 2018 NY Slip Op 05224 [163 AD3d 1151] |
| July 12, 2018 |
| Appellate Division, Third Department |
[*1](July 12, 2018)
| The People of the State of New York,Respondent, v Saeed T. Kaid, Appellant. |
G. Scott Walling, Slingerlands, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), forrespondent.
Devine, J. Appeal from a judgment of the County Court of Chemung County (Hayden, J.),rendered March 10, 2014, convicting defendant upon his plea of guilty of the crime of criminalpossession of a controlled substance in the third degree.
As detailed in our prior decision in this matter (141 AD3d 741 [2016]), the State Policestopped a vehicle for speeding in the Town of Horseheads, Chemung County on March 17, 2013.Defendant was a passenger in the vehicle and, after exiting the vehicle and being patted down,marihuana was found on his person. He was handcuffed and placed on the bumper of the patrolcar, after which one of the troopers observed a plastic bag fall on the ground beneath defendantthat was later determined to contain cocaine and heroin.
Defendant was charged in a four-count indictment with various drug offenses. His motion tosuppress evidence obtained from the stop of the vehicle and the subsequent search conducted bythe trooper was denied. Defendant then pleaded guilty to one count of criminal possession of acontrolled substance in the third degree in satisfaction of the indictment. As contemplated by theplea agreement, defendant was sentenced, as a second felony offender, to six years in prison andthree years of postrelease supervision. Defendant appeals and, following the assignment of newappellate counsel (141 AD3d at 742), we affirm.
Defendant attacks the denial of his suppression motion. The two troopers involved in [*2]the traffic stop testified at the suppression hearing, and theirtestimony reflects that they lawfully stopped the vehicle in which defendant was traveling basedupon observations and radar readings confirming that it was moving well over the posted speedlimit (see People v Williams, 145AD3d 1188, 1189-1190 [2016], lv denied 29 NY3d 1002 [2017]; People v Ponzo, 111 AD3d 1347,1347 [2013]). The troopers were trained to identify the odor of burnt marihuana and detected itemanating from the vehicle as they approached. The troopers were thereafter justified indemanding defendant's identification and ordering him out of the vehicle; moreover, they hadprobable cause "to search [the] vehicle and its occupants" at that point under precedent that wedecline defendant's invitation to revisit (People v Cuffie, 109 AD3d 1200, 1201 [2013], lv denied 22NY3d 1087 [2014]; see People v Williams, 145 AD3d at 1190; People v Francois, 138 AD3d1165, 1166 [2016]). Marihuana was found on defendant's person during the pat down thatensued, and he was handcuffed and placed against the troopers' vehicle. One of the trooperstestified to seeing defendant drop the plastic bag containing the drugs to the pavement, whichconstituted an abandonment and "forfeit[ed] any expectation of privacy in such item" (People v Davis, 83 AD3d 1210,1212 [2011], lv denied 17 NY3d 794 [2011]; see People v Weekes, 52 AD3d 1032, 1034 [2008], lvdenied 11 NY3d 796 [2008]). It appears that County Court (Keene, J.) credited the testimonyof the troopers, and we accord deference to that assessment (see People v Robinson, 156 AD3d 1123, 1130 [2017], lvdenied 30 NY3d 1119 [2018]). As such, we conclude that defendant's suppression motionwas properly denied (see People v Williams, 145 AD3d at 1190; People v Rasul, 121 AD3d 1413,1415-1416 [2014]).
Defendant's contention, in his pro se supplemental brief, that County Court (Rich Jr., J.)erred in accepting his guilty plea is unpreserved in the absence of an appropriate postallocutionmotion (see People v Peque, 22NY3d 168, 182 [2013]; People vCarter, 158 AD3d 946, 946 [2018]; People v DeAngelo, 136 AD3d 1119, 1120 [2016]). Inasmuch asdefendant did not make any statements during the allocution that called his guilt or thevoluntariness of his plea into question, the narrow exception to the preservation requirement isinapplicable (see People v Carter, 158 AD3d at 946; People v DeAngelo, 136AD3d at 1120). Lastly, defendant's claims of ineffective assistance "that relate to thevoluntariness of [his] plea are unpreserved due to his failure to make an appropriatepostallocution motion, and those claims that are unrelated to the voluntariness of his plea areforeclosed by his guilty plea" (People v Williams, 145 AD3d at 1191; see People v Young, 158 AD3d955, 956 [2018], lv denied 31 NY3d 1090 [2018]).
McCarthy, J.P., Egan Jr., Lynch and Aarons, JJ., concur. Ordered that the judgment isaffirmed.