Opinion
2021-04089 Ind 3518/16 1093/18
06-24-2021
The People of the State of New York, Respondent, v. Donnie McCray, Defendant-Appellant. Appeal No. 14126-14127 Nos. 2019-2523, 2019-2531
Caprice R. Jenerson, Office of the Appellate Defender, New York (Tabitha P. Cohen of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Jillian Lewis of counsel), for respondent.
Caprice R. Jenerson, Office of the Appellate Defender, New York (Tabitha P. Cohen of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Jillian Lewis of counsel), for respondent.
Before: Gische, J.P., Webber, Oing, González, JJ.
Judgments, Supreme Court, New York County (Maxwell Wiley, J.), rendered February 13, 2019, convicting defendant, upon his pleas of guilty, of criminal possession of a controlled substance in the second and third degrees, and sentencing him to concurrent terms of five years, unanimously affirmed.
The court properly denied defendant's suppression motion, in all respects, after a hearing addressing incidents that occurred in 2o16 and 2018 and that were the subject of two consolidated indictments. Initially, we find no basis for disturbing the court's credibility determinations as to both incidents, which are supported by the record (see People v Prochilo, 41 N.Y.2d 759, 761 [1977]).
In the 2016 case, the police smelled marijuana coming from a moving car, saw the codefendant apparently smoking marijuana and passing it to defendant, and also saw smoke coming out of the car. When the officers stopped the car, they continued to smell marijuana, saw defendant furtively stuffing an object into his sock, and saw marijuana on the floor of the car. Accordingly, the police had ample probable cause to believe that defendant and his codefendant possessed marijuana in the car. This justified a search of the car pursuant to the automobile exception, under which "State actors may search a vehicle without a warrant when they have probable cause to believe that evidence or contraband will be found there" so long as there is "a nexus between the arrest and the probable cause to search" (People v Galak, 81 N.Y.2d 463, 467 [1993]). Therefore, the police lawfully seized a bottle of Oxycodone pills in the center console of the car, and the issue of whether the unlawful contents of the bottle were ascertainable in plain view before the officer looked at it is academic.
Once the police found marijuana and the bottle, which contained a significant amount of Oxycodone, they had probable cause to believe that additional drugs were being stored in the car, including the trunk (see People v Scott, 18 A.D.3d 285 [1st Dept 2005], lv denied 5 N.Y.3d 810 [2005]). The search of the trunk was predicated on more than the mere smell of marijuana (compare People v Ponder, 195 A.D.3d 123 [1st Dept 2021]), The automobile exception does not require a showing of exigent circumstances or inability to obtain a warrant, and it applied here notwithstanding that the police searched the car hours later, while it was under their exclusive control at the precinct (see e.g. People v Milerson, 51 N.Y.2d 919, 921 [1980]; People v Hurtado, 113 A.D.3d 411 [1st Dept 2014], lv denied 22 N.Y.3d 1199 [2014]; People v Sosa, 255 A.D.2d 236, 237 [1st Dept 1998], lv denied 93 N.Y.2d 979 [1999]).
The record also supports the hearing court's further holding that the 2016 search was a valid inventory search (see People v Walker, 20 N.Y.3d 122 [2012]). Defendant's argument that his statements to the police during the 2016 traffic stop should have been suppressed for lack of Miranda warnings is unavailing, because defendant was not in custody for Miranda purposes (see Berkemer v McCarty, 468 U.S. 420, 436-437 [1984]; People v Bennett, 70 N.Y.2d 891, 894 [1987]; see also People v Allen, 73 N.Y.2d 378, 380 [1989]).
In the 2018 incident, the record establishes a valid inventory search, "the primary objectives of [which] were to preserve the property... and to protect police from a claim of lost property" (People v Lee, 29 N.Y.3d 1119, 1120 [2017]). An officer's testimony that one of the requirements of an inventory search is to remove any contraband does not warrant a different conclusion.