Opinion
11857 Ind. No. 3199/15 Case No. 2017-954
09-29-2020
The PEOPLE of the State of New York, Respondent, v. Melvin JOHNSON III, Defendant–Appellant.
Janet E. Sabel, The Legal Aid Society, New York (Paul Wiener of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Nathan Brandon Shi of counsel), for respondent.
Janet E. Sabel, The Legal Aid Society, New York (Paul Wiener of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Nathan Brandon Shi of counsel), for respondent.
Friedman, J.P., Mazzarelli, Kern, Kennedy, JJ.
Judgment, Supreme Court, New York County (Bonnie G. Wittner, J.), rendered April 14, 2016, convicting defendant, upon his plea of guilty, of criminal possession of a controlled substance in the third and fourth degrees, and unlawful possession of marijuana, and sentencing him to a term of three years' probation and a $75 fine, unanimously affirmed.
The motion court properly denied defendant's motion to suppress physical evidence. There is no basis for disturbing the court's credibility determinations. An officer's observations of a strong smell of marijuana coming directly from defendant and a plastic bag protruding from his pocket warranted the officer's inquiry into whether defendant had marijuana on him, and defendant's incriminating reply provide probable cause for his arrest (see People v. Loretta , 107 A.D.3d 541, 541, 969 N.Y.S.2d 1 [1st Dept. 2013], lv denied 22 N.Y.3d 1157, 984 N.Y.S.2d 641, 7 N.E.3d 1129 [2014] ). The evidence also supports the conclusion that the search was "incident to an actual arrest, not just to probable cause that might have led to an arrest, but did not" ( People v. Reid , 24 N.Y.3d 615, 619, 2 N.Y.S.3d 409, 26 N.E.3d 237 [2014] ). We have considered and rejected defendant's remaining arguments.