Opinion
2013-11-8
The PEOPLE of the State of New York, Respondent, v. Dallas E. PONZO, Jr., Defendant–Appellant.
The Legal Aid Bureau of Buffalo, Inc., Buffalo (Robert B. Hallborg, Jr., of Counsel), for Defendant–Appellant.
PRESENT: CENTRA, J.P., FAHEY, CARNI, SCONIERS AND VALENTINO, JJ.
MEMORANDUM:
Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, criminal possession of a controlledsubstance in the fifth degree (Penal Law § 220.06[5] ) and aggravated unlicensed operation of a motor vehicle in the second degree (Vehicle and Traffic Law § 511[2][a][iv] ). We reject defendant's contention that Supreme Court erred in refusing to suppress the crack cocaine seized from the vehicle he was driving. The court's implicit credibility determinations “ ‘are entitled to great deference on appeal and will not be disturbed unless clearly unsupported by the record’ ” (People v. Bush, 107 A.D.3d 1581, 1582, 966 N.Y.S.2d 720). The testimony at the suppression hearing established that the State Troopers observed defendant driving a vehicle in excess of the posted speed limit, which justified their stop of the vehicle for speeding ( see People v. Williams, 79 A.D.3d 1653, 1654, 914 N.Y.S.2d 521, affd.17 N.Y.3d 834, 930 N.Y.S.2d 530, 954 N.E.2d 1155). Thereafter, one of the Troopers, trained in the recognition of marihuana, detected the odor of marihuana when he approached the vehicle, which provided probable cause to search the vehicle ( see People v. Chestnut, 43 A.D.2d 260, 261, 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. Cuffie, 109 A.D.3d 1200, 1201, 972 N.Y.S.2d 383). Further, the Trooper noticed marihuana “residue” on the driver's side floorboard and seat. “Having justifiably stopped the vehicle for [a traffic violation] and having detected the odor of marihuana from inside it, [the Trooper] had reasonable suspicion that the [vehicle] contained drugs and the subsequent canine sniff was proper” (People v. Gathogo, 276 A.D.2d 925, 926–927, 715 N.Y.S.2d 459, lv. denied96 N.Y.2d 734, 722 N.Y.S.2d 801, 745 N.E.2d 1024). Contrary to defendant's contention, the Trooper's testimony was not “ incredible as a matter of law,” i.e., “ ‘manifestly untrue, physically impossible, contrary to experience, or self-contradictory’ ” (Bush, 107 A.D.3d at 1582, 966 N.Y.S.2d 720).
We note that defendant's release to parole supervision does not render moot his challenge to the severity of the sentence because “he ‘remains under the control of the Parole Board until his sentence has terminated’ ” (People v. Barber, 106 A.D.3d 1533, 1533, 964 N.Y.S.2d 450). Nevertheless, we conclude that the sentence is not unduly harsh or severe.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.