Opinion
993 KA 16-00577
02-11-2021
The PEOPLE of the State of New York, Respondent, v. Brandon COLLINS, Defendant-Appellant.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
MARK D. FUNK, CONFLICT DEFENDER, ROCHESTER (KATHLEEN P. REARDON OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (DANIEL GROSS OF COUNSEL), FOR RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: Defendant appeals from a judgment convicting him upon his plea of guilty of burglary in the first degree ( Penal Law § 140.30 [4] ). Defendant contends that his waiver of the right to appeal is invalid, that County Court erred in denying that part of his omnibus motion seeking to suppress physical evidence, that he did not knowingly, intelligently and voluntarily plead guilty, and that the sentence is unduly harsh and severe. Even assuming, arguendo, that defendant's waiver of the right to appeal is invalid (see People v. Love , 181 A.D.3d 1193, 1193, 118 N.Y.S.3d 475 [4th Dept. 2020] ), we conclude that the judgment should be affirmed.
Defendant contends that the court erred in refusing to suppress the physical evidence found in his vehicle because the police lacked probable cause to search the vehicle. We reject that contention. Initially, contrary to the People's assertion, defendant's contention is preserved for our review because defendant challenged the search of the vehicle at the suppression hearing and the court expressly ruled on that issue (see People v. Graham , 25 N.Y.3d 994, 997, 10 N.Y.S.3d 172, 32 N.E.3d 387 [2015] ; People v. Mack , 114 A.D.3d 1282, 1282, 980 N.Y.S.2d 868 [4th Dept. 2014], lv denied 22 N.Y.3d 1200, 986 N.Y.S.2d 421, 9 N.E.3d 916 [2014] ; cf. People v. Lanaux , 156 A.D.3d 1459, 1460, 65 N.Y.S.3d 847 [4th Dept. 2017], lv denied 31 N.Y.3d 985, 77 N.Y.S.3d 662, 102 N.E.3d 439 [2018] ). The record establishes, and defendant does not dispute, that the police were entitled to stop his vehicle based on observed violations of the Vehicle and Traffic Law (see People v. Ricks , 145 A.D.3d 1610, 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] ; see generally People v. Robinson , 97 N.Y.2d 341, 349, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ; People v. Binion , 100 A.D.3d 1514, 1515, 954 N.Y.S.2d 369 [4th Dept. 2012], lv denied 21 N.Y.3d 911, 966 N.Y.S.2d 362, 988 N.E.2d 891 [2013] ).
Furthermore, we conclude that, after stopping the vehicle, the police had probable cause to search it. "[I]t is 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, is sufficient to constitute probable cause" to search a vehicle ( 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]). A police officer testified at the suppression hearing that he was familiar with the smell of unburnt marihuana, and that he detected that odor emanating from the vehicle as he approached it (see People v. Wright , 158 A.D.3d 1125, 1126-1127, 70 N.Y.S.3d 299 [4th Dept. 2018], lv denied 31 N.Y.3d 1089, 79 N.Y.S.3d 111, 103 N.E.3d 1258 [2018] ; Mack , 114 A.D.3d at 1282, 980 N.Y.S.2d 868 ; Cuffie , 109 A.D.3d at 1201, 972 N.Y.S.2d 383 ). Additionally, we discern no basis to disturb the court's credibility assessments, which are entitled to great deference, because "[n]othing about the [challenged] testimony was unbelievable as a matter of law, manifestly untrue, physically impossible, contrary to experience, or self contradictory" ( 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] ; see generally People v. Prochilo , 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ; People v. Bush , 107 A.D.3d 1581, 1582, 966 N.Y.S.2d 720 [4th Dept. 2013], lv denied 22 N.Y.3d 954, 977 N.Y.S.2d 186, 999 N.E.2d 551 [2013] ).
Defendant also contends that the plea should be vacated on the ground that the plea colloquy is factually insufficient because it undermined his admission of guilt. Defendant failed, however, to preserve that contention for our review (see People v. Wilkes , 160 A.D.3d 1491, 1491, 76 N.Y.S.3d 342 [4th Dept. 2018], lv denied 31 N.Y.3d 1154, 83 N.Y.S.3d 436, 108 N.E.3d 510 [2018] ; People v. Sheppard , 154 A.D.3d 1329, 1329, 63 N.Y.S.3d 173 [4th Dept. 2017] ; People v. Brinson , 130 A.D.3d 1493, 1493, 11 N.Y.S.3d 788 [4th Dept. 2015], lv denied 26 N.Y.3d 965, 18 N.Y.S.3d 601, 40 N.E.3d 579 [2015] ), and this case does not fall within the narrow exception to the preservation requirement. To the extent that defendant negated an essential element of the crime by denying any knowledge of his codefendants’ intent to commit a burglary when defendant drove them to and from the crime scene (see People v. Lopez , 71 N.Y.2d 662, 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 [1988] ), we note that the court immediately conducted the requisite further inquiry to ensure that defendant's guilty plea was knowing, intelligent, and voluntary (see id. ; People v. Rojas , 147 A.D.3d 1535, 1536, 47 N.Y.S.3d 813 [4th Dept. 2017], lv denied 29 N.Y.3d 1036, 62 N.Y.S.3d 305, 84 N.E.3d 977 [2017] ; People v. Waterman , 229 A.D.2d 1013, 1013, 645 N.Y.S.2d 666 [4th Dept. 1996] ). We also conclude that "defendant's responses to the court's subsequent questions removed [any] doubt about [his] guilt" ( People v. Vogt , 150 A.D.3d 1704, 1705, 54 N.Y.S.3d 259 [4th Dept. 2017] [internal quotation marks omitted]; see People v. Bonacci , 119 A.D.3d 1348, 1349, 988 N.Y.S.2d 391 [4th Dept. 2014], lv denied 24 N.Y.3d 1042, 998 N.Y.S.2d 312, 23 N.E.3d 155 [2014] ; People v. Ocasio , 265 A.D.2d 675, 677-678, 697 N.Y.S.2d 368 [3d Dept. 1999] ).
Finally, we conclude that the bargained-for sentence is not unduly harsh or severe.