| People v Vaughn |
| 2022 NY Slip Op 01945 [203 AD3d 1729] |
| March 18, 2022 |
| Appellate Division, Fourth Department |
[*1]
| The People of the State of New York,Respondent, v Kawaun Vaughn, Appellant. |
Frank H. Hiscock Legal Aid Society, Syracuse (Philip Rothschild of counsel), fordefendant-appellant.
William J. Fitzpatrick, District Attorney, Syracuse (Jessica N. Carbone of counsel), forrespondent
Appeal from a judgment of the Onondaga County Court (Stephen J. Dougherty, J.), renderedFebruary 7, 2020. The judgment convicted defendant upon a plea of guilty of criminal possessionof a controlled substance in the third degree.
It is hereby ordered that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty ofcriminal possession of a controlled substance in the third degree (Penal Law§ 220.16 [1]). We affirm.
Defendant contends that County Court erred in refusing to suppress physical evidencerecovered from his vehicle after police officers approached and searched the vehicle, as well asstatements he made to police thereafter. We reject that contention. When the police approach anindividual situated in a vehicle "that is already parked and stationary, the only level of suspicionnecessary to justify that approach is an articulable, credible reason for doing so, not necessarilyindicative of criminality" (People vWitt, 129 AD3d 1449, 1450 [4th Dept 2015], lv denied 26 NY3d 937 [2015];see People v Ocasio, 85 NY2d 982, 985 [1995]; People v Grady, 272 AD2d 952,952 [4th Dept 2000], lv denied 95 NY2d 905 [2000]). To approach an occupied vehicle,"[a]ll that is required is that the intrusion be predicated on more than a hunch, whim, caprice oridle curiosity" (Grady, 272 AD2d at 952 [internal quotation marks omitted]; seeOcasio, 85 NY2d at 985). To that end, a person's presence in a high-crime area, withoutmore, does not provide an objective credible reason for approaching the vehicle (see People vMcIntosh, 96 NY2d 521, 526-527 [2001]; People v Savage, 137 AD3d 1637, 1638 [4th Dept 2016]).
Here, an officer testified at the suppression hearing that he and his partner were conducting aproperty check at an apartment complex located in a "known gang area" when they observed twooccupied vehicles in the parking lot, one of which was defendant's vehicle. While the officer waswalking in the direction of defendant's vehicle—but before he had any contact withdefendant or initiated any encounter with him—he detected the odor of burning marihuanaemanating from inside the vehicle, which was an odor he recognized based on his training andexperience. Thus, in addition to having an objective, credible reason to approach defendant in thevehicle, the officer also had probable cause to search the vehicle (see People v Clanton, 151 AD3d1576, 1577 [4th Dept 2017]; Peoplev Ricks, 145 AD3d 1610, 1611 [4th Dept 2016], lv denied 29 NY3d 1000[2017]; People v Cuffie, 109 AD3d1200, 1201 [4th Dept 2013], lv denied 22 NY3d 1087 [2014]). Contrary todefendant's contention, this is not a case where the police detected the odor of burning marihuanaafter the officer had already initiated an encounter with a defendant situated in a vehicle(cf. People v King, 199 AD3d1454, 1454 [4th Dept 2021]).
We also reject defendant's alternative contention that newly-enacted Penal Law§ 222.05 (3) (L 2021, ch 92)—which provides, as relevant here, that the odorof cannabis can no longer be [*2]the sole basis supporting a"determination of reasonable cause to believe a crime has been committed"—should beapplied retroactively to conclude that the police lacked probable cause to search the vehicle. It iswell settled that "[s]tatutes dealing with matters other than procedure are not [intended] to beapplied retroactively absent a plainly manifested legislative intent to that effect" (People vOliver, 1 NY2d 152, 157 [1956]; see People v Behlog, 74 NY2d 237, 240 [1989]).Here, nothing in the plain language of Penal Law § 222.05 (3) indicates that thelegislature clearly intended that provision to have retroactive effect (see L 2021, ch 92; see also People v Austen, 197 AD3d861, 864 [4th Dept 2021, Smith, J.P., concurring]; People v Lawrence, 80 AD3d 1011, 1012 [3d Dept 2011]). Indeed,we note that where the legislature intended for the new laws regulating marihuana to haveretroactive effect, it clearly specified so (see e.g. CPL 440.46-a).
In light of our determination, we reject defendant's further contention that his statements tothe police must be suppressed as fruit of the poisonous tree (see generally People v Nichols, 113 AD3d 1122, 1123 [4th Dept2014], lv denied 23 NY3d 1065 [2014]; People v Sims, 106 AD3d 1473, 1474 [4th Dept 2013], appealdismissed 22 NY3d 992 [2013]).
Finally, contrary to defendant's contention, the sentence is not unduly harsh or severe.Present—Centra, J.P., Peradotto, Lindley, Curran and Winslow, JJ.