| People v Jones |
| 2021 NY Slip Op 00051 [190 AD3d 1013] |
| January 7, 2021 |
| Appellate Division, Third Department |
[*1](January 7, 2021)
| The People of the State of New York,Respondent, v Massi Jones, Appellant. |
Stephen W. Herrick, Public Defender, Albany (Steven M. Sharp of counsel), forappellant.
P. David Soares, District Attorney, Albany (Vincent Stark of counsel), for respondent.
Reynolds Fitzgerald, J. Appeal from a judgment of the County Court of Albany County(Lynch, J.), rendered October 3, 2017, convicting defendant upon his plea of guilty of the crimeof attempted criminal possession of a controlled substance in the third degree.
On January 6, 2017, State Trooper Clayton Howell was on patrol duty on the New York StateThruway when he received an alert to be on the lookout for a gray Kia bearing a certain licensenumber. Thereafter, Howell observed the vehicle and began following it when he noticed its rearlicense plate was partially obscured by the license plate bracket. Believing this obstruction to be aviolation of the Vehicle and Traffic Law, Howell initiated a traffic stop of the vehicle and, as heapproached the driver side window, he detected the odor of marihuana. Howell radioed forassistance and, upon the arrival of other state troopers, Howell conducted a search of the vehicleand discovered a plastic bag containing a green leafy substance that field-tested positive formarihuana. During a subsequent search of defendant's person, Howell found a plastic bag pinnedto the inside of defendant's pants containing a substance later determined to be 74 grams of crackcocaine. Defendant was thereafter charged by indictment with two counts of criminal possessionof a controlled substance in the third degree. Defendant moved to suppress, among other things,the physical evidence obtained from the vehicle and his person. Following a suppression hearing,County Court denied defendant's motion to suppress the physical evidence.
Defendant thereafter pleaded guilty to attempted criminal possession of a controlledsubstance in the third degree. As a condition of the plea agreement, defendant waived his right toappeal, but expressly reserved his right to appeal from the adverse suppression decision underCPL 710.70 (2). Defendant was sentenced, as a second felony offender, to a prison term of fiveyears, followed by three years of postrelease supervision, consistent with the terms of the pleaagreement. Defendant appeals.
In denying defendant's suppression motion, County Court found the initial approach and thestop of defendant's vehicle to be lawful. The stop of a vehicle by law enforcement "is a seizureimplicating constitutional limitations" and, as such, is only permitted when the stop is "based onprobable cause that a driver has committed a traffic violation" (People v Hinshaw, 35 NY3d 427,430 [2020] [internal quotation marks and citations omitted]). Probable cause exists for an officerto effect a traffic stop where the officer observes the traffic violation (see People v Cummings, 157 AD3d982, 983 [2018], lv denied 31 NY3d 982 [2018]; People v Rasul, 121 AD3d 1413, 1415 [2014]). This is true even if"the officer's primary motivation to stop the vehicle may have been other than the trafficviolation" (People v Hinshaw, 35 NY3d at 430; see People v Price, 186 AD3d 903, 904 [2020]).
Vehicle and Traffic Law § 402 (1[*2]) (b)provides, in pertinent part, that number plates "shall not be covered by glass or any plasticmaterial, and shall not be knowingly covered or coated with any artificial or synthetic material orsubstance that conceals or obscures such number plates . . . and the view of suchnumber plates shall not be obstructed by any part of the vehicle or by anything carried thereon."Howell testified that while he was driving behind the vehicle, he observed that the rear licenseplate was partially covered by a license plate bracket in violation of Vehicle and Traffic Law§ 402 (1). He further testified that the bracket covered about an inch to an inch anda half of the bottom portion of the license plate, covering the words "Empire State" and the areawhere inspection stickers or commercial vehicle information would be. Howell's uncontradictedtestimony that he observed defendant driving with a license plate partially obstructed providedprobable cause for his subsequent stop of the vehicle, which was lawful (see People v Newman, 96 AD3d34, 40 [2012], lv denied 19 NY3d 999 [2012], cert denied 568 US 1132[2013]; People v Brooks, 23 AD3d847, 849 [2005], lvs denied 6 NY3d 810, 811 [2006]).
Defendant's contention that no violation occurred because Howell was able to read thenumbers on the license plate is meritless. "As the clearest indicator of legislative intent is thestatutory text, the starting point in any case of interpretation must always be the language itself,giving effect to the plain meaning thereof" (Majewski v Broadalbin-Perth Cent. SchoolDist., 91 NY2d 577, 583 [1998]). The statutory language repeatedly refers to number plates,reflecting a clear intent that no part of the plate may be obstructed, and not merely that thenumbers be unobstructed. Had the Legislature intended only to prohibit the obstruction of thenumbers on the plates, it could have done so (see Yaniveth R. v LTD Realty Co., 27 NY3d 186, 193 [2016];see Vehicle and Traffic Law § 375 [2] [a] [4]). In any case, given theforegoing analysis, even if we were to determine that the statute had not been violated, the stopwould still pass constitutional muster based on Howell's "objectively reasonable mistake of law"(People v Guthrie, 25 NY3d130, 139 [2015]).
Defendant next challenges the lawfulness of the ensuing search of the vehicle, specificallywhether the People established that Howell was qualified to detect the odor of marihuanaemanating from the vehicle. "It is well established that the odor of marihuana emanating from avehicle, when detected by an officer qualified by training and experience to recognize it, issufficient to constitute probable cause to search a vehicle" (People v Hines, 172 AD3d 1649, 1651 [2019] [internal quotationmarks and citations omitted], lv denied 34 NY3d 951 [2019]; see People v Sostre, 172 AD3d1623, 1624 [2019], lv denied 34 NY3d 938 [2019]; People v Williams, 145 AD3d1188, 1190 [2016], lv denied 29 NY3d 1002 [2017]). As [*3]to Howell's training, he testified that he received State Police basictraining, Vehicle and Traffic Law training and drug training on the smell of marihuana and drugrecognition, including cocaine, which he had seen numerous times throughout his career. Howellstated that he had successfully completed all of the training. Howell further testified that when heapproached the driver side of the vehicle, he smelled the odor of marihuana emanating directlyfrom inside the vehicle. Howell recounted that he asked defendant several questions regardingthe odor of marihuana coming from the vehicle, to which defendant responded by denyingsmoking marihuana but admitting that it was his girlfriend's car and that she might smokemarihuana. Howell conducted a search, recovering six grams of marihuana located in thesunglasses holder in the overhead console.
Although Howell's testimony as to his training and experience was minimal, it establishedthat he had completed drug training to recognize drugs and detect the smell of marihuana (cf. People v Pierre, 8 AD3d 904,906 [2004], lv denied 3 NY3d 710 [2004]). The smell of marihuana provided probablecause to search the vehicle, including "any of the contents of the vehicle that may conceal thecontraband sought," as well as defendant's person (People v Kalabakas, 183 AD3d 1133, 1138 [2020] [internalquotation marks and citations omitted], lv denied 35 NY3d 1067 [2020]). Deferring toCounty Court's determination to credit the testimony of Howell, who the court found to be"frank, candid and trustworthy," we find that the court properly denied defendant's suppressionmotion (see People v Sostre, 172 AD3d at 1624; People v Rudolph, 170 AD3d 1258, 1259 [2019], lv denied34 NY3d 937 [2019]; People vKaid, 163 AD3d 1151, 1152 [2018], lv denied 32 NY3d 1005 [2018]).
Egan Jr., J.P., Clark, Aarons and Colangelo, JJ., concur. Ordered that the judgment isaffirmed.