Opinion
229/21 KA 18-02388
01-28-2022
The PEOPLE of the State of New York, Respondent, v. Anthony FUDGE, Defendant-Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (KRISTEN N. MCDERMOTT OF COUNSEL), FOR DEFENDANT-APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JESSICA N. CARBONE OF COUNSEL), FOR RESPONDENT.
PRESENT: CENTRA, J.P., CARNI, NEMOYER, WINSLOW, AND BANNISTER, JJ.
MEMORANDUM AND ORDER A motion having been made on behalf of Kristen N. McDermott, Esq., attorney for defendant-appellant, for leave to file a late motion for reargument and/or reconsideration of this Court's Opinion and Order entered on August 26, 2021,
Now, upon reading and filing the affidavit of Paul G. Ferrara, sworn to November 30, 2021, affidavit of Kristen N. McDermott, sworn to November 15, 2021, affidavit of Robert S. Dean, sworn to November 16, 2021, affidavit of Michael J. Hutter, sworn to November 16, 2021, affidavit of Todd A. Berger, sworn to November 16, 2021, affirmation of Andrew S. Greenberg, dated November 12, 2021, the exhibits annexed thereto, the notice of said motion with proof of service thereof, affirmation in opposition of Jessica N. Carbone, dated December 7, 2021, reply affidavit of Paul G. Ferrara, sworn to December 16, 2021, and due deliberation having been had thereon,
It is hereby ORDERED that said motion be and the same hereby is dismissed on the ground that Kristen N. McDermott lacks standing to move for reargument or reconsideration of this appeal (see CPL 470.50[1] ; Marine Midland Bank-Central v. Gleason , 47 N.Y.2d 1009, 1009, 420 N.Y.S.2d 222, 394 N.E.2d 291 [1979] ; Judd v. Odell , 254 A.D.2d 841, 841, 678 N.Y.S.2d 706 [4th Dept. 1998] ).
Now, on the Court's own motion,
It is hereby ORDERED that the opinion and order entered August 26, 2021 ( 199 A.D.3d 16, 153 N.Y.S.3d 718 [4th Dept. 2021] ) is vacated and the following memorandum and order is substituted therefor:
Appeal from a judgment of the Supreme Court, Onondaga County (Gordon J. Cuffy, A.J.), rendered August 10, 2018. The judgment convicted defendant, upon his plea of guilty, of criminal possession of a controlled substance in the fourth 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, of criminal possession of a controlled substance in the fourth degree ( Penal Law § 220.09 [1] ). Supreme Court properly refused to suppress physical evidence discovered during a vehicle search. Contrary to defendant's contention, a trained police officer's detection of the scent of street-level PCP constitutes probable cause to search the location from which the scent emanates (see Sanchez v. City of New York , 168 A.D.3d 584, 585, 90 N.Y.S.3d 529 [1st Dept. 2019] ; People v. Darby , 263 A.D.2d 112, 113-114, 701 N.Y.S.2d 395 [1st Dept. 2000], lv denied 95 N.Y.2d 795, 711 N.Y.S.2d 163, 733 N.E.2d 235 [2000] ; see also United States v. Glover , 681 F.3d 411, 418 [D.C. Cir. 2012], cert denied 568 U.S. 995, 133 S.Ct. 568, 184 L.Ed.2d 370 [2012] ; United States v. Hubert , 48 Fed. Appx. 481, 481 [5th Cir. 2002], cert denied 537 U.S. 1146, 123 S.Ct. 947, 154 L.Ed.2d 848 [2003] ; Minnick v. United States , 607 A.2d 519, 525 [D.C. 1992] ). Contrary to defendant's further contention, there is no basis to disturb the suppression court's credibility determination (see People v. Carmona , 149 A.D.3d 670, 671, 50 N.Y.S.3d 880 [1st Dept. 2017], lv denied 29 N.Y.3d 1090, 63 N.Y.S.3d 6, 85 N.E.3d 101 [2017] ; see also Darby , 263 A.D.2d at 113-114, 701 N.Y.S.2d 395 ; see generally People v. Prochilo , 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ). The sentence is not unduly harsh or severe.