Opinion
07-03-2024
The PEOPLE of the State of New York, Respondent, v. Dishawn SINKLER, Defendant-Appellant.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AMY N. WALENDZIAK OF COUNSEL), FOR RESPONDENT.
Appeal from a judgment of the Supreme Court, Monroe County (Charles A. Schiano, Jr., J.), rendered January 13, 2020. The judgment convicted defendant, upon a guilty plea, of criminal possession of a weapon in the second degree.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (AMY N. WALENDZIAK OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., BANNISTER, OGDEN, GREENWOOD, AND NOWAK, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by vacating the period of postrelease supervision and imposing a period of 2½ years of postrelease supervision, and as modified the judgment is affirmed.
Memorandum: Defendant appeals from a judgment convicting him, upon his guilty plea, of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]). According to police testimony at a suppression hearing, defendant was a passenger in a vehicle that was stopped for traveling at an excessive rate of speed, among other infractions. During the traffic stop, an officer noticed the odor of unburnt marihuana emanating from the vehicle, and that officer testified that he was familiar with the smell of unburnt marihuana based on his training and experience. The officer asked the driver to step out of the vehicle and then placed him in the officer’s patrol car. Meanwhile, two other officers arrived, and they approached defendant and asked him to step out of the vehicle. Defendant was then frisked, and a 9 millimeter handgun was recovered from his person.
[1, 2] We reject defendant’s contention that Supreme Court erred in determining that the police had probable cause to search his person. At the time that the stop was conducted in 2019, it was "well established that [t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, [was] sufficient to constitute probable cause to search a vehicle and its occupants" (People v. Cuffie, 109 A.D.3d 1200, 1201, 972 N.Y.S.2d 383 [4th Dept. 2013], lv denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] [internal quotation marks omitted]; see People v. Chestnut, 36 N.Y.2d 971, 973, 373 N.Y.S.2d 564, 335 N.E.2d 865 [1975], affg 43 A.D.2d 260, 351 N.Y.S.2d 26 [3d Dept. 1974]; cf. People v. Townsend, 225 A.D.3d 1156, 1158, 207 N.Y.S.3d 284 [4th Dept. 2024], lv denied 41 N.Y.3d 1004, 213 N.Y.S.3d 233, 236 N.E.3d 1252 [May 21, 2024]). Although defendant asks us to revisit that rule, the rule was established by the Court of Appeals in Chestnut, and "it is not this Court’s prerogative to overrule or disregard a precedent of the Court of Appeals" (People v. Boswell, 197 A.D.3d 950, 951, 150 N.Y.S.3d 640 [4th Dept. 2021], lv denied 37 N.Y.3d 1095, 156 N.Y.S.3d 782, 178 N.E.3d 429 [2021] [internal quotation marks omitted]; see Hernandez v. City of Syracuse, 164 A.D.3d 1609, 1609, 85 N.Y.S.3d 293 [4th Dept. 2018]). Defendant’s remaining contentions regarding the suppression hearing are either unpreserved or are academic in light of our determination.
[3] Defendant further contends that Penal Law § 265.03 (3) is unconstitutional in light of the United States Supreme Court’s decision in (New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S. 1, 142 S.Ct. 2111, 213 L.Ed.2d 387 [2022]). As defendant correctly concedes, that contention is unpreserved for our review (see People v. Jacque-Crews, 213 A.D.3d 1335, 1335-1336, 183 N.Y.S.3d 234 [4th Dept. 2023], lv denied 39 N.Y.3d 1111, 186 N.Y.S.3d 841, 208 N.E.3d 69 [2023]; see generally People v. Davidson, 98 N.Y.2d 738, 739-740, 751 N.Y.S.2d 161, 780 N.E.2d 972 [2002]; People v. Reinard, 134 A.D.3d 1407, 1409, 22 N.Y.S.3d 270 [4th Dept. 2015], lv denied 27 N.Y.3d 1074, 38 N.Y.S.3d 844, 60 N.E.3d 1210 [2016], cert denied 580 U.S. 969, 137 S.Ct. 392, 196 L.Ed.2d 308 [2016]), and we decline to exercise our power to review it as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
[4] Finally, defendant correctly notes that his sentence is illegal insofar as the court imposed a two-year period of postrelease supervision. The sentence for his conviction of criminal possession of a weapon in the second degree, a class C violent felony, should have included a period of postrelease supervision of between 2½ years and five years (see Penal Law § 70.45 [2] [f]). "Although [that] issue was not raised before the [sentencing] court …, we cannot allow an [illegal] sentence to stand" (People v. Hughes, 112 A.D.3d 1380, 1381, 977 N.Y.S.2d 841 [4th Dept. 2013], lv denied 23 N.Y.3d 1038, 993 N.Y.S.2d 251, 17 N.E.3d 506 [2014] [internal quotation marks omitted]). Defendant requests that we exercise our inherent authority to correct the sentence by imposing the minimum legal period of postrelease supervision (see generally People v. Mabry, 214 A.D.3d 1300, 1302, 185 N.Y.S.3d 450 [4th Dept. 2023], lv denied 40 N.Y.3d 935, 194 N.Y.S.3d 753, 215 N.E.3d 1194 [2023], reconsideration denied 40 N.Y.3d 1081, 202 N.Y.S.3d 757, 225 N.E.3d 877 [2023]), a request that the People do not oppose. Inasmuch as the court expressed its intention to impose the minimum period of postrelease supervision, we agree with defendant and modify the judgment in the interest of judicial economy by vacating the period of postrelease supervision and imposing a period of 2½ years of postrelease supervision.