| People v Dolan |
| 2018 NY Slip Op 07204 [165 AD3d 1499] |
| October 25, 2018 |
| Appellate Division, Third Department |
[*1]
| The People of the State of New York,Respondent, v Brian J. Dolan, Appellant. |
Rachel Rappazzo, Schenectady, for appellant.
Susan J. Mallery, District Attorney, Schoharie (Michael L. Breen of counsel), forrespondent.
Mulvey, J. Appeal from a judgment of the County Court of Schoharie County (Bartlett III,J.), rendered February 1, 2017, convicting defendant upon his plea of guilty of the crime ofunlawful manufacture of methamphetamine in the third degree.
On February 7, 2016, a vehicle being operated by defendant was stopped by state troopers forviolations of the Vehicle and Traffic Law. Upon approaching the vehicle and speaking to itsoccupants, the troopers detected the odor of burnt marihuana emanating from inside the vehicle.The troopers thereafter asked for and obtained defendant's consent to search the vehicle, whichresulted in the discovery of various items of equipment and precursors used in the manufacture ofmethamphetamine. As a result, defendant was charged by indictment with criminal possession ofprecursors of methamphetamine and unlawful manufacture of methamphetamine in the thirddegree. After County Court denied defendant's motion to suppress the items seized from hisvehicle, he pleaded guilty to unlawful manufacture of methamphetamine in the third degree andwas sentenced, as a second felony offender, to two years in prison followed by one year ofpostrelease supervision. He now appeals, solely challenging the denial of his suppressionmotion.
Defendant does not dispute that the troopers had authority to stop the vehicle based upon,among other things, the failure to signal his intention to turn for the requisite distance before theintersection (see Vehicle and Traffic Law § 1163 [b]; People v Cuffie, 109 AD3d 1200,1201 [2013], lv denied 22 NY3d 1087 [2014]; People v Tandle, 71 AD3d 1176, 1177-1178 [2010], lvdenied 15 NY3d 757 [2010]). As for the ensuing search of the vehicle, it is settled that "theodor of marihuana emanating from a vehicle, when detected by an officer qualified by trainingand experience to recognize it, is sufficient to constitute probable cause to search a vehicle andits occupants" (People v Rasul, 121AD3d 1413, 1415 [2014] [internal quotation marks, brackets and citations omitted]; accord People v Williams, 145 AD3d1188, 1190 [2016], lv denied 29 NY3d 1002 [2017]; People v Francois, 138 AD3d1165, 1166 [2016]). [*2]Here, the troopers involved in thelawful traffic stop testified that they approached the vehicle from opposite sides and, whilespeaking with defendant and the front-seat passenger through their respective windows, eachimmediately detected an odor of burnt marihuana emanating from within the vehicle. Contrary todefendant's contention, the record supports the conclusion that the troopers—one of whomis a certified drug recognition expert—possessed the requisite training and experience toidentify the distinctive odor of burnt marihuana (see People v Williams, 145 AD3d at1190; People v Rasul, 121 AD3d at 1415; People v Cuffie, 109 AD3d at 1201).Further, prior to the search, the front-seat passenger admitted to having a marihuana pipe andturned it over to one of the troopers (seePeople v Ketteles, 62 AD3d 902, 903-904 [2009], lv denied 13 NY3d 746[2009]; People v Feili, 27 AD3d318, 319 [2006], lv denied 6 NY3d 894 [2006]; cf. People v McRay, 51NY2d 594, 601 [1980]). In light of the circumstances presented and the observations made by thetroopers, probable cause existed to search the vehicle (see People v Kaid, 163 AD3d 1151, 1152 [2018], lv denied32 NY3d 1005 [2018]; People v Williams, 145AD3d at 1190; People v Rasul, 121 AD3d at 1415; People v Cuffie, 109 AD3d at1201; People v Horge, 80 AD3d1074, 1074-1075 [2011]). Moreover, as the troopers' request for consent was based upon afounded suspicion that criminality was afoot, defendant's consent to search the vehicle wasvalidly obtained and provided an additional basis for the search (see People v Nelson, 156 AD3d1112, 1113-1114 [2017], lv denied 31 NY3d 1151 [2018]; People v Boyea, 44 AD3d 1093,1094-1095 [2007]; see generally People v Hodge, 44 NY2d 553, 559 [1978]).Accordingly, defendant's suppression motion was properly denied.
Egan Jr., J.P., Clark, Aarons and Pritzker, JJ., concur. Ordered that the judgment isaffirmed.