Opinion
2014-07-9
The PEOPLE, etc., respondent, v. Dion JOHN, also known as Dion T. John, appellant.
Robert DiDio, Kew Gardens, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jennifer Hagan, and Andrea Alvarez–Calderon of counsel), for respondent.
Robert DiDio, Kew Gardens, N.Y., for appellant. Richard A. Brown, District Attorney, Kew Gardens, N.Y. (John M. Castellano, Jennifer Hagan, and Andrea Alvarez–Calderon of counsel), for respondent.
Appeal by the defendant from a judgment of the Supreme Court, Queens County (Kron, J.), rendered December 20, 2012, convicting him of criminal possession of a weapon in the second degree (two counts), criminal possession of a weapon in the third degree, criminal possession of stolen property in the fifth degree, criminal possession of marijuana in the fifth degree, and improper equipment of a vehicle (Vehicle and Traffic Law § 375.40), upon his plea of guilty, and imposing sentence. The appeal brings up for review the denial, after a hearing (Modica, J.), of those branches of the defendant's omnibus motion which were to suppress physical evidence and his statements to law enforcement officials.
ORDERED that the judgment is affirmed.
The credibility determinations of a hearing court are accorded great deference on appeal, and will not be disturbed unless clearly unsupported by the record ( see People v. Glover, 84 A.D.3d 977, 978, 921 N.Y.S.2d 896;People v. Tandle, 71 A.D.3d 1176, 1178, 898 N.Y.S.2d 597). Generally, the decision to stop an automobile is objectively reasonable where the police have probable cause to believe that a violation of the Vehicle and Traffic Law has occurred ( see People v. Pealer, 20 N.Y.3d 447, 450–452, 962 N.Y.S.2d 592, 985 N.E.2d 903;People v. Wright, 98 N.Y.2d 657, 658–659, 746 N.Y.S.2d 273, 773 N.E.2d 1011;People v. Abraham, 111 A.D.3d 756, 756, 974 N.Y.S.2d 539). Here, the record supports the hearing court's determination to credit a police officer's testimony that he observed that the defendant's vehicle had a defective or inoperable brake light, which justified the stop of the vehicle for a traffic infraction ( see Vehicle and Traffic Law § 375.40[b]; People v. Davis, 103 A.D.3d 810, 811, 962 N.Y.S.2d 174;People v. Glover, 84 A.D.3d at 978, 921 N.Y.S.2d 896).
The hearing court also properly found, upon crediting the police officer's testimony, that upon his approach to the defendant's vehicle, he detected the odor of marijuana emanating from the opened driver's side window, and observed a clear plastic bag in the ashtray. In light of these circumstances, the police had probable cause to search the vehicle ( see People v. Condon, 100 A.D.3d 920, 920, 954 N.Y.S.2d 212;People v. Hughes, 68 A.D.3d 894, 895, 890 N.Y.S.2d 121;People v. Cirigliano, 15 A.D.3d 672, 673, 791 N.Y.S.2d 584). Consequently, the hearing court properly denied that branch of the defendant's omnibus motion which was to suppress the physical evidence recovered during the vehicle search. Additionally, since the search of the defendant's vehicle and his arrest were lawful, his subsequent statements to the police cannot be deemed the fruit of the poisonous tree subject to the exclusionary rule. Accordingly, the hearing court also properly denied that branch of the defendant's omnibus motion which was to suppress his statements to the police ( see People v. McClendon, 92 A.D.3d 959, 960, 939 N.Y.S.2d 530;People v. George, 78 A.D.3d 728, 728–729, 910 N.Y.S.2d 508;People v. Day, 8 A.D.3d 495, 496, 778 N.Y.S.2d 513;see generally Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441). ENG, P.J., LEVENTHAL, LOTT and ROMAN, JJ., concur.