Opinion
1211 KA 15–00600
02-02-2018
The PEOPLE of the State of New York, Respondent, v. Markall WRIGHT, Defendant–Appellant.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT–APPELLANT. WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.
FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PHILIP ROTHSCHILD OF COUNSEL), FOR DEFENDANT–APPELLANT.
WILLIAM J. FITZPATRICK, DISTRICT ATTORNEY, SYRACUSE (JAMES P. MAXWELL OF COUNSEL), FOR RESPONDENT.
PRESENT: SMITH, J.P., CARNI, CURRAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Defendant appeals from a judgment convicting him, upon his plea of guilty, of attempted criminal possession of a controlled substance in the third degree ( Penal Law §§ 110.00, 220.16[1] ). We conclude that Supreme Court properly refused to suppress the crack cocaine and marihuana recovered from the vehicle in which defendant had been sitting. Contrary to defendant's contention, the record establishes that the police officers had a reasonable suspicion that defendant was involved in criminal activity or that he posed some danger to them. The police officers encountered defendant in a parking lot located in the 300 block of South Avenue in the City of Syracuse, which was a high-crime area that was known to the officers for gang activity and was frequently used to conduct drug transactions. When the officers arrived at the scene in their marked patrol vehicle, they observed three vehicles in the otherwise empty lot. Two of the vehicles, a Jeep Compass that was occupied by defendant and a Nissan Maxima, were positioned with the driver's side doors facing each other. When defendant noticed the officers, he reacted in a startled manner and made a furtive movement toward the center console of the Jeep. The driver of the Nissan Maxima then drove away and defendant exited the Jeep, at which time he was recognized by the officers as a gang member with an extensive criminal history. On this record, we conclude that the officers had a "reasonable suspicion that [defendant was] involved in criminal acts or pose[d] some danger to [them]" ( People v. Harrison, 57 N.Y.2d 470, 476, 457 N.Y.S.2d 199, 443 N.E.2d 447 [1982] ; see People v. Clay, 147 A.D.3d 1499, 1500, 47 N.Y.S.3d 609 [4th Dept. 2017],lv denied 29 N.Y.3d 1030, 62 N.Y.S.3d 299, 84 N.E.3d 971 [2017] ; People v. Mack, 49 A.D.3d 1291, 1292, 853 N.Y.S.2d 764 [4th Dept. 2008], lv denied 10 N.Y.3d 866, 860 N.Y.S.2d 492, 890 N.E.2d 255 [2008] ). Contrary to defendant's further contention, the officers were justified in forcibly stopping defendant by approaching him with their weapons drawn (see generally Harrison, 57 N.Y.2d at 476, 457 N.Y.S.2d 199, 443 N.E.2d 447 ), inasmuch as they "had a reasonable basis for fearing for their safety and [were] not required to await the glint of steel" ( People v. Bracy, 91 A.D.3d 1296, 1298, 937 N.Y.S.2d 501 [4th Dept. 2012], lv denied 20 N.Y.3d 1060, 962 N.Y.S.2d 610, 985 N.E.2d 920 [2013] [internal quotation marks omitted] ).
We further conclude that the officers had probable cause to search the Jeep. When the officers approached defendant, he slammed the door of the Jeep, which caused the odor of unburnt marihuana to emanate from the area of defendant and the vehicle. It is well established that the odor of marihuana "emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, is sufficient to constitute probable cause to search [the] vehicle and its occupants" ( People v. Walker, 128 A.D.3d 1499, 1500, 8 N.Y.S.3d 826 [4th Dept. 2015], lv denied 26 N.Y.3d 936, 17 N.Y.S.3d 99, 38 N.E.3d 845 [2015] [internal quotation marks omitted]; see People v. Ricks, 145 A.D.3d 1610, 1611, 45 N.Y.S.3d 738 [4th Dept. 2016], lv denied 29 N.Y.3d 1000, 57 N.Y.S.3d 722, 80 N.E.3d 415 [2017] ).
Contrary to defendant's further contention, the sentence is not unduly harsh or severe. Finally, in light of our determination, we do not address defendant's remaining contention.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.