Opinion
106865B
07-12-2018
The PEOPLE of the State of New York, Respondent, v. Saeed T. KAID, Appellant.
G. Scott Walling, Slingerlands, for appellant. Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.
G. Scott Walling, Slingerlands, for appellant.
Weeden A. Wetmore, District Attorney, Elmira (John R. Thweatt of counsel), for respondent.
Before: McCarthy, J.P., Egan Jr., Lynch, Devine and Aarons, JJ.
MEMORANDUM AND ORDER
Devine, J.
Appeal from a judgment of the County Court of Chemung County (Hayden, J.), rendered March 10, 2014, convicting defendant upon his plea of guilty of the crime of criminal possession of a controlled substance in the third degree.
As detailed in our prior decision in this matter ( 141 A.D.3d 741, 34 N.Y.S.3d 909 [2016] ), the State Police stopped a vehicle for speeding in the Town of Horseheads, Chemung County on March 17, 2013. Defendant was a passenger in the vehicle and, after exiting the vehicle and being patted down, marihuana was found on his person. He was handcuffed and placed on the bumper of the patrol car, after which one of the troopers observed a plastic bag fall on the ground beneath defendant that was later determined to contain cocaine and heroin.
Defendant was charged in a four-count indictment with various drug offenses. His motion to suppress evidence obtained from the stop of the vehicle and the subsequent search conducted by the trooper was denied. Defendant then pleaded guilty to one count of criminal possession of a controlled substance in the third degree in satisfaction of the indictment. As contemplated by the plea agreement, defendant was sentenced, as a second felony offender, to six years in prison and three years of postrelease supervision. Defendant appeals and, following the assignment of new appellate counsel ( 141 A.D.3d at 742, 34 N.Y.S.3d 909 ), we affirm.
Defendant attacks the denial of his suppression motion. The two troopers involved in the traffic stop testified at the suppression hearing, and their testimony reflects that they lawfully stopped the vehicle in which defendant was traveling based upon observations and radar readings confirming that it was moving well over the posted speed limit (see People v. Williams, 145 A.D.3d 1188, 1189–1190, 43 N.Y.S.3d 190 [2016], lv denied 29 N.Y.3d 1002, 57 N.Y.S.3d 723, 80 N.E.3d 416 [2017] ; People v. Ponzo, 111 A.D.3d 1347, 1347, 975 N.Y.S.2d 274 [2013] ). The troopers were trained to identify the odor of burnt marihuana and detected it emanating from the vehicle as they approached. The troopers were thereafter justified in demanding defendant's identification and ordering him out of the vehicle; moreover, they had probable cause "to search [the] vehicle and its occupants" at that point under precedent that we decline defendant's invitation to revisit ( People v. Cuffie, 109 A.D.3d 1200, 1201, 972 N.Y.S.2d 383 [2013], lv denied 22 N.Y.3d 1087, 981 N.Y.S.2d 673, 4 N.E.3d 975 [2014] ; see People v. Williams, 145 A.D.3d at 1190, 43 N.Y.S.3d 190 ; People v. Francois, 138 A.D.3d 1165, 1166, 30 N.Y.S.3d 349 [2016] ). Marihuana was found on defendant's person during the pat down that ensued, and he was handcuffed and placed against the troopers' vehicle. One of the troopers testified to seeing defendant drop the plastic bag containing the drugs to the pavement, which constituted an abandonment and "forfeit[ed] any expectation of privacy in such item" ( People v. Davis, 83 A.D.3d 1210, 1212, 921 N.Y.S.2d 400 [2011], lv denied 17 N.Y.3d 794, 929 N.Y.S.2d 102, 952 N.E.2d 1097 [2011] ; see People v. Weekes, 52 A.D.3d 1032, 1034, 860 N.Y.S.2d 278 [2008], lv denied 11 N.Y.3d 796, 866 N.Y.S.2d 622, 896 N.E.2d 108 [2008] ). It appears that County Court (Keene, J.) credited the testimony of the troopers, and we accord deference to that assessment (see People v. Robinson, 156 A.D.3d 1123, 1130, 67 N.Y.S.3d 709 [2017], lv denied 30 N.Y.3d 1119, 77 N.Y.S.3d 344, 101 N.E.3d 985 [2018] ). As such, we conclude that defendant's suppression motion was properly denied (see People v. Williams, 145 A.D.3d at 1190, 43 N.Y.S.3d 190 ; People v. Rasul, 121 A.D.3d 1413, 1415–1416, 995 N.Y.S.2d 380 [2014] ).
Defendant's contention, in his pro se supplemental brief, that County Court (Rich Jr., J.) erred in accepting his guilty plea is unpreserved in the absence of an appropriate postallocution motion (see People v. Peque, 22 N.Y.3d 168, 182, 980 N.Y.S.2d 280, 3 N.E.3d 617 [2013] ; People v. Carter, 158 A.D.3d 946, 946, 68 N.Y.S.3d 775 [2018] ; People v. DeAngelo, 136 A.D.3d 1119, 1120, 25 N.Y.S.3d 405 [2016] ). Inasmuch as defendant did not make any statements during the allocution that called his guilt or the voluntariness of his plea into question, the narrow exception to the preservation requirement is inapplicable (see People v. Carter, 158 A.D.3d at 946, 68 N.Y.S.3d 775 ; People v. DeAngelo, 136 A.D.3d at 1120, 25 N.Y.S.3d 405 ). Lastly, defendant's claims of ineffective assistance "that relate to the voluntariness of [his] plea are unpreserved due to his failure to make an appropriate postallocution motion, and those claims that are unrelated to the voluntariness of his plea are foreclosed by his guilty plea" ( People v. Williams, 145 A.D.3d at 1191, 43 N.Y.S.3d 190 ; see People v. Young, 158 A.D.3d 955, 956, 68 N.Y.S.3d 773 [2018], lv denied 31 N.Y.3d 1090, 79 N.Y.S.3d 111, 103 N.E.3d 1258, 2018 WL 2946043 [May 24, 2018] ).
ORDERED that the judgment is affirmed.
McCarthy, J.P., Egan Jr., Lynch and Aarons, JJ., concur.