Opinion
06-09-2017
The PEOPLE of the State of New York, Respondent, v. Calvin CLANTON, Defendant–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), For Respondent.
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), For Respondent.
PRESENT: CARNI, J.P., LINDLEY, DeJOSEPH, TROUTMAN, AND SCUDDER, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon his plea of guilty of criminal 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 marihuana emanating from a vehicle they had stopped for a traffic violation. Defendant, a passenger in that vehicle, attempted to flee from the scene upon exiting the vehicle but was detained by the officers. In response to one officer's pre-Miranda inquiry, defendant admitted to possessing a firearm. The officer then searched defendant and found a loaded firearm on his person. County Court subsequently refused to suppress defendant's statement to the police and the firearm.
Defendant contends that the court should have rejected the officer's testimony offered in support of the decision of the police to search the vehicle and its occupants inasmuch as there was no concrete evidence of marihuana possession presented at the suppression hearing. We reject 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, is sufficient to constitute probable cause to search a vehicle and its occupants' " ( People v. Ricks, 145 A.D.3d 1610, 1611, 45 N.Y.S.3d 738 ; see People v. Chestnut, 43 A.D.2d 260, 261–262, 351 N.Y.S.2d 26, affd. 36 N.Y.2d 971, 373 N.Y.S.2d 564, 335 N.E.2d 865 ; People v. Grimes, 133 A.D.3d 1201, 1202, 20 N.Y.S.3d 261 ; People v. Cuffie, 109 A.D.3d 1200, 1201, 972 N.Y.S.2d 383, lv. denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 ). Here, the officer testified that, as soon as the front passenger-side window was rolled down, he "immediately observed the strong odor of burnt mari[h]uana coming from within the vehicle" and contemporaneously saw "what appeared to [him] to be ashes all over [defendant]’ s pants, in his lap" (see generally People v. Ponzo, 111 A.D.3d 1347, 1348, 975 N.Y.S.2d 274 ; People v. Guido, 175 A.D.2d 364, 365, 572 N.Y.S.2d 96, lv. denied 78 N.Y.2d 1076, 577 N.Y.S.2d 239, 583 N.E.2d 951 ). The officer further testified that he also observed "numerous small remnants of mari[h]uana blunts" in the plastic ashtray in the passenger-side door (see generally People v. Semanek, 30 A.D.3d 547, 547–548, 816 N.Y.S.2d 569 ). Significantly, the officer also testified that he had received "training in the Academy" regarding the "physical characteristics and odor" of marihuana, and that he had encountered the smell of burnt marihuana "thousands of times" in the field. "It is well settled that great deference should be given to the determination of the suppression court, which had the opportunity to observe the demeanor of the witnesses and to assess their credibility, and its factual findings should not be disturbed unless clearly erroneous" ( People v. Layou, 134 A.D.3d 1510, 1511, 23 N.Y.S.3d 517, lv. denied 27 N.Y.3d 1070, 38 N.Y.S.3d 841, 60 N.E.3d 1207, reconsideration denied 28 N.Y.3d 932, 40 N.Y.S.3d 360, 63 N.E.3d 80 ). Here, we see "no basis to disturb the court's credibility assessments of the officer[ ] inasmuch as [n]othing about the officer['s] testimony was unbelievable as a matter of law, manifestly untrue, physically impossible, contrary to experience, or self contradictory" ( People v. Walker, 128 A.D.3d 1499, 1500, 8 N.Y.S.3d 826, lv. denied 26 N.Y.3d 936, 17 N.Y.S.3d 99, 38 N.E.3d 845 [internal quotation marks omitted] ).
We agree with defendant, however, that the court should have suppressed the statement defendant made to the police in response to police questioning inasmuch as defendant was in custody at the time but had not waived his Miranda rights. After defendant had been restrained and handcuffed, an officer asked him, "why are you fighting us," or "[w]hy did you run from the car." As noted above, at the time the question was asked, defendant had been physically restrained and handcuffed after he had fled from an attempted body search and had engaged in a struggle with the police, and we therefore conclude that Miranda warnings were required. For purposes of Miranda, "interrogation" refers to "express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect" ( Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 [footnotes omitted]; see People v. Ferro, 63 N.Y.2d 316, 322, 482 N.Y.S.2d 237, 472 N.E.2d 13, cert. denied 472 U.S. 1007, 105 S.Ct. 2700, 86 L.Ed.2d 717 ; see also People v. Lightner, 56 A.D.3d 1274, 1275, 868 N.Y.S.2d 449, lv. dismissed 12 N.Y.3d 760, 876 N.Y.S.2d 711, 904 N.E.2d 848 ). "Although the police may 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 longer requires clarification of the crime or its suspects, custodial questioning will constitute interrogation" ( People v. Rifkin, 289 A.D.2d 262, 262–263, 733 N.Y.S.2d 710, lv. denied 97 N.Y.2d 759, 742 N.Y.S.2d 620, 769 N.E.2d 366 ; see People v. Bastian, 294 A.D.2d 882, 884, 743 N.Y.S.2d 217, lv. denied 98 N.Y.2d 694, 747 N.Y.S.2d 412, 776 N.E.2d 1 ; People v. Soto, 183 A.D.2d 926, 927, 584 N.Y.S.2d 160 ). Here, the interaction between defendant and the officers had traveled far beyond a "threshold crime scene inquiry" ( People v. Brown, 49 A.D.3d 1345, 1346, 853 N.Y.S.2d 815 ) and, under such circumstances, it was likely that the officer's question "would elicit evidence of a crime and, indeed, it did elicit an incriminating response" (id. ; see People v. Hardy, 5 A.D.3d 792, 793, 775 N.Y.S.2d 322, lv. denied 3 N.Y.3d 641, 782 N.Y.S.2d 412, 816 N.E.2d 202, reconsideration denied 3 N.Y.3d 675, 784 N.Y.S.2d 13, 817 N.E.2d 831 ; see also Lightner, 56 A.D.3d at 1275, 868 N.Y.S.2d 449 ).
In spite of the unlawful pre–Miranda custodial interrogation of defendant, we nevertheless conclude that the court was not required to suppress the firearm. Indeed, the court properly determined that "[a] cursory search of [d]efendant's person would have resulted in finding 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 suppressed pursuant to the fruit of the poisonous tree doctrine will be deemed admissible " ‘where the normal course of police investigation would, in any case, even absent the illicit conduct, have inevitably led to such evidence’ "
( People v. Garcia, 101 A.D.3d 1604, 1605–1606, 959 N.Y.S.2d 571, lv. denied 20 N.Y.3d 1098, 965 N.Y.S.2d 794, 988 N.E.2d 532, quoting People v. Fitzpatrick, 32 N.Y.2d 499, 506, 346 N.Y.S.2d 793, 300 N.E.2d 139, cert. denied 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 ). Here, defendant's statement admitting his possession of the handgun was the tainted primary evidence arising from the unlawful pre–Miranda custodial interrogation and must be suppressed (see People v. Stith, 69 N.Y.2d 313, 320, 514 N.Y.S.2d 201, 506 N.E.2d 911 ); however, the inevitable discovery doctrine applies to the handgun as secondary evidence arising therefrom (see People v. Turriago, 90 N.Y.2d 77, 86, 659 N.Y.S.2d 183, 681 N.E.2d 350, rearg. denied 90 N.Y.2d 936, 664 N.Y.S.2d 274, 686 N.E.2d 1369 ; People v. Dempsey, 177 A.D.2d 1018, 1019, 578 N.Y.S.2d 290, lv. denied 79 N.Y.2d 946, 583 N.Y.S.2d 200, 592 N.E.2d 808 ). We conclude that there was a " ‘very high degree of probability’ " that the officers would have discovered the firearm, which was found inside the right leg of defendant's pants during a lawful and routine search of defendant's person prior to his attempted flight ( Turriago, 90 N.Y.2d at 86, 659 N.Y.S.2d 183, 681 N.E.2d 350 ; see People v. Beckwith, 303 A.D.2d 594, 595, 759 N.Y.S.2d 80 ; Dempsey, 177 A.D.2d at 1019, 578 N.Y.S.2d 290 ; People v. Deresky, 134 A.D.2d 512, 512–513, 521 N.Y.S.2d 100, lv. denied 71 N.Y.2d 895, 527 N.Y.S.2d 1004, 523 N.E.2d 311 ; cf. People v. Bookless, 120 A.D.2d 950, 950–951, 502 N.Y.S.2d 846, lv. denied 68 N.Y.2d 767, 506 N.Y.S.2d 1051, 498 N.E.2d 153 ).
Although defendant's statement admitting to the possession of the firearm should have been suppressed, we conclude that the particular circumstances of this case permit the rare application of the harmless error rule to defendant's guilty plea (see Beckwith, 303 A.D.2d at 595, 759 N.Y.S.2d 80 ). "[W]hen a conviction is based on a plea of guilty an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant's decision, unless at the time of the plea he states or reveals his reason for pleading guilty" ( People v. Grant, 45 N.Y.2d 366, 379–380, 408 N.Y.S.2d 429, 380 N.E.2d 257 ). "The Grant doctrine is not absolute, however, and [the Court of Appeals has] recognized that a guilty plea entered after an improper court ruling may be upheld if there is no ‘reasonable possibility that the error contributed to the plea’ " ( People v. Wells, 21 N.Y.3d 716, 719, 977 N.Y.S.2d 712, 999 N.E.2d 1157 ). In our view, because the firearm was not suppressed and would have been admissible at trial, there is no reasonable possibility that the court's error in failing to suppress defendant's statement admitting possession of the firearm contributed to his decision to plead guilty (cf. Grant, 45 N.Y.2d at 379–380, 408 N.Y.S.2d 429, 380 N.E.2d 257 ).
It is hereby ORDERED that the judgment so appealed from is affirmed.
All concur except LINDLEY, and TROUTMAN, JJ., who dissent and vote to reverse in accordance with the following memorandum:
We respectfully dissent. We agree with the majority's conclusion that County
Court erred in denying that part of defendant's omnibus motion seeking suppression of the statement he made to the police in which he admitted possession of the firearm. Unlike the majority, however, we cannot conclude that the error is harmless. Where, as here, "a conviction is based on a plea of guilty[,] an appellate court will rarely, if ever, be able to determine whether an erroneous denial of a motion to suppress contributed to the defendant's decision, unless at the time of the plea he [or she] states or reveals his [or her] reason for pleading guilty. This is especially true when the defendant has unsuccessfully sought to suppress a confession" ( People v. Grant, 45 N.Y.2d 366, 379–380, 408 N.Y.S.2d 429, 380 N.E.2d 257 ; see People v. Wells, 21 N.Y.3d 716, 717–718, 977 N.Y.S.2d 712, 999 N.E.2d 1157 ; cf. People v. Lloyd, 66 N.Y.2d 964, 965, 498 N.Y.S.2d 785, 489 N.E.2d 754 ). 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 A.D.3d 1085, 1087, 20 N.Y.S.3d 682 ). Here, there is no such proof (see People v. Coles, 62 N.Y.2d 908, 910, 479 N.Y.S.2d 1, 467 N.E.2d 885 ; cf. Lloyd, 66 N.Y.2d at 965, 498 N.Y.S.2d 785, 489 N.E.2d 754 ). Although the firearm is admissible and was found on defendant's person (see People v. Beckwith, 303 A.D.2d 594, 595, 759 N.Y.S.2d 80 ), we cannot say that the erroneous denial of the motion to suppress the statement did not contribute to defendant's decision to accept the plea offer that was extended to him by the People. We would therefore reverse the judgment, vacate the plea, grant that part of the omnibus motion seeking to suppress the statement at issue, and remit the matter to County Court for further proceedings on the indictment.