Opinion
16035 Ind. No. 4919/16 Case No. 2019–2349
05-31-2022
The PEOPLE of the State of New York, Respondent, v. Daheem SALLEY, Defendant–Appellant.
Robert S. Dean, Center for Appellate Litigation, New York (Carola M. Beeney of counsel), for appellant. Alvin L. Bragg, Jr., District Attorney, New York (Karl Z. Deuble of counsel), for respondent.
Robert S. Dean, Center for Appellate Litigation, New York (Carola M. Beeney of counsel), for appellant.
Alvin L. Bragg, Jr., District Attorney, New York (Karl Z. Deuble of counsel), for respondent.
Webber, J.P., Kern, Oing, Scarpulla, Pitt, JJ.
Judgment, Supreme Court, New York County (Laura A. Ward, J. at hearing; Curtis Farber, J. at plea and sentencing), rendered January 30, 2019, convicting defendant of criminal possession of a weapon in the second degree, and sentencing him, as a second violent felony offender, to a term of seven years, unanimously affirmed.
The court properly denied defendant's suppression motion. There is no basis for disturbing the court's credibility determinations, which are supported by the record (see People v. Prochilo, 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ).
During a lawful stop of a taxi for a traffic infraction, the police noticed, among other things, the odor of marijuana. Under the prevailing law at the time of this incident, the mere odor of marijuana justified the search of a car and its occupants (see e.g. People v. Smith, 66 A.D.3d 514, 887 N.Y.S.2d 562 [1st Dept. 2009], lv denied 13 N.Y.3d 942, 895 N.Y.S.2d 332, 922 N.E.2d 921 [2010] ). Accordingly, the search of defendant's person, which yielded a pistol and marijuana, was lawful on that basis. Although newly-enacted Penal Law § 222.05(3) affects whether a finding of probable cause may be made on evidence of the odor of cannabis, that statute should not be applied retroactively ( People v. Pastrana, ––– A.D.3d ––––, ––– N.Y.S.3d ––––, 2022 N.Y. Slip Op. 03058, *2 [1st Dept. 2022] ; People v. Vaughn, 203 A.D.3d 1729, 1730, 165 N.Y.S.3d 223 [4th Dept. 2022] ).