Opinion
1083 KA 19-00799
03-11-2022
The PEOPLE of the State of New York, Respondent, v. Josue RODRIGUEZ-RIVERA, Defendant-Appellant.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE E. PHILLIPS OF COUNSEL), FOR RESPONDENT.
THE LEGAL AID BUREAU OF BUFFALO, INC., BUFFALO (DEBORAH K. JESSEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (DANIELLE E. PHILLIPS OF COUNSEL), FOR RESPONDENT.
PRESENT: PERADOTTO, J.P., CARNI, LINDLEY, CURRAN, AND BANNISTER, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is affirmed.
Memorandum: On appeal from a judgment convicting him upon a jury verdict of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ) and unlawful possession of marihuana (former § 221.05), defendant contends that Supreme Court erred in refusing to suppress a handgun and marihuana seized from his vehicle because the police did not have probable cause to search the vehicle. We reject that contention. The record establishes, and defendant does not dispute, that the arresting officer was entitled to stop defendant's vehicle after he observed defendant violate a provision 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 also Vehicle and Traffic Law § 1163 [a] ; see generally People v. Robinson , 97 N.Y.2d 341, 349-350, 741 N.Y.S.2d 147, 767 N.E.2d 638 [2001] ). We also conclude that, following the traffic stop, the officer had probable cause to search the vehicle after he detected—based on his training and experience—the " ‘odor of marihuana emanating from [the inside of the] vehicle’ " ( Ricks , 145 A.D.3d at 1611, 45 N.Y.S.3d 738 ; see People v. Clanton , 151 A.D.3d 1576, 1577, 57 N.Y.S.3d 775 [4th Dept. 2017] ; 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] ). Further, we note that defendant spontaneously admitted to the officer that he had been smoking marihuana and that there was marihuana located inside the vehicle (see People v. Milerson , 51 N.Y.2d 919, 920-921, 434 N.Y.S.2d 980, 415 N.E.2d 968 [1980] ; Cuffie , 109 A.D.3d at 1201, 972 N.Y.S.2d 383 ). We reject defendant's contention that probable cause came to an end once the police discovered a single jar of marihuana; the police had reason to believe that there was additional marihuana to be found inside (see generally Milerson , 51 N.Y.2d at 920-921, 434 N.Y.S.2d 980, 415 N.E.2d 968 ). While lawfully searching for the additional marihuana, the police recovered the handgun inside the vehicle (see generally People v. Brown , 96 N.Y.2d 80, 88-89, 725 N.Y.S.2d 601, 749 N.E.2d 170 [2001] ).
We also reject defendant's contention that the court erred in refusing to suppress statements he made to the police. Defendant's statement about the odor in his vehicle, which he made immediately after he was pulled over by the police, was a "response[ ] to threshold inquiries by the police ... intended to ascertain the nature of the situation during initial investigation of a crime, rather than to elicit evidence of a crime, and th[at] statement[ ] thus w[as] not subject to suppression" ( People v. Mitchell , 132 A.D.3d 1413, 1414, 17 N.Y.S.3d 563 [4th Dept. 2015], lv denied 27 N.Y.3d 1072, 38 N.Y.S.3d 842, 60 N.E.3d 1208 [2016] [internal quotation marks omitted]; see generally People v. Huffman , 41 N.Y.2d 29, 34, 390 N.Y.S.2d 843, 359 N.E.2d 353 [1976] ). Defendant's statement admitting that there was marihuana inside the vehicle was not subject to suppression because it was "spontaneous and not the result of inducement, provocation, encouragement or acquiescence" ( People v. Bumpars , 178 A.D.3d 1379, 1380, 116 N.Y.S.3d 838 [4th Dept. 2019], lv denied 36 N.Y.3d 1055, 141 N.Y.S.3d 749, 165 N.E.3d 675 [2021] [internal quotation marks omitted]; see People v. Rivers , 56 N.Y.2d 476, 480, 453 N.Y.S.2d 156, 438 N.E.2d 862 [1982], rearg denied 57 N.Y.2d 775, 454 N.Y.S.2d 1033, 440 N.E.2d 1343 [1982] ; People v. Maerling , 46 N.Y.2d 289, 302-303, 413 N.Y.S.2d 316, 385 N.E.2d 1245 [1978] ). Even assuming, arguendo, that defendant's subsequent statement informing the police that the marihuana was under the driver's seat should have been suppressed because it was made in response to a question "reasonably likely to elicit an incriminating response" ( Rhode Island v. Innis , 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 [1980] ), we conclude that any error in failing to suppress that statement was harmless (see People v. Crimmins , 36 N.Y.2d 230, 237, 367 N.Y.S.2d 213, 326 N.E.2d 787 [1975] ).
Defendant also contends that the court erred in refusing to suppress a statement he made after one of the officers advised him of his Miranda rights because the People failed to establish that he knowingly, voluntarily, and intelligently waived those rights. We reject that contention. Although defendant initially answered "no" when the officer asked him if he understood the Miranda rights, the evidence at the suppression hearing established that the officer immediately asked defendant what he could clarify about the Miranda rights and that defendant ignored that question to express displeasure at the escalation of the traffic stop—indicating that defendant was not, in fact, confused about his Miranda rights. Moreover, "an explicit verbal waiver [of the Miranda rights] is not required; an implicit waiver may suffice and may be inferred from the circumstances" ( People v. Smith , 217 A.D.2d 221, 234, 635 N.Y.S.2d 824 [4th Dept. 1995], lv denied 87 N.Y.2d 977, 642 N.Y.S.2d 207, 664 N.E.2d 1270 [1996] ; see People v. Jones , 120 A.D.3d 1595, 1595, 992 N.Y.S.2d 823 [4th Dept. 2014] ). Here, we conclude that the People established an implicit waiver by virtue of the fact that "defendant ha[d] been advised of his Miranda rights and within [seconds] thereafter willingly answer[ed] questions during interrogation" ( People v. Goncalves , 288 A.D.2d 883, 884, 732 N.Y.S.2d 765 [4th Dept. 2001], lv denied 97 N.Y.2d 729, 740 N.Y.S.2d 702, 767 N.E.2d 159 [2002] [internal quotation marks omitted]; see Jones , 120 A.D.3d at 1595, 992 N.Y.S.2d 823 ).
As defendant correctly concedes, he failed to preserve for our review his contention that his conviction is not supported by legally sufficient evidence (see People v. Gray , 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 652 N.E.2d 919 [1995] ). Nevertheless, " ‘we necessarily review the evidence adduced as to each of the elements of the crimes in the context of our review of defendant's challenge regarding the weight of the evidence’ " ( People v. Stepney , 93 A.D.3d 1297, 1298, 940 N.Y.S.2d 752 [4th Dept. 2012], lv denied 19 N.Y.3d 968, 950 N.Y.S.2d 120, 973 N.E.2d 218 [2012] ). Viewing the evidence in light of the elements of the crime and the violation as charged to the jury (see generally People v. Danielson , 9 N.Y.3d 342, 349, 849 N.Y.S.2d 480, 880 N.E.2d 1 [2007] ), we reject defendant's contention that the verdict is against the weight of the evidence (see generally People v. Bleakley , 69 N.Y.2d 490, 495, 515 N.Y.S.2d 761, 508 N.E.2d 672 [1987] ). We also reject defendant's contention that he was denied effective assistance of counsel based on the alleged failure of his attorney to advise him to accept the People's plea offer. The record amply demonstrates that, on multiple occasions, the People extended a favorable plea offer to defendant and that he discussed the offer with defense counsel and ultimately rejected it each time, insisting that he wanted to go to trial. Defendant therefore failed to satisfy his burden of showing "that a plea offer was made, that defense counsel failed to inform him of that offer, and that he would have been willing to accept the offer" ( People v. Fernandez , 5 N.Y.3d 813, 814, 803 N.Y.S.2d 22, 836 N.E.2d 1144 [2005] [internal quotation marks omitted]; see also People v. Spencer , 183 A.D.3d 1258, 1259, 123 N.Y.S.3d 369 [4th Dept. 2020], lv denied 35 N.Y.3d 1070, 129 N.Y.S.3d 380, 152 N.E.3d 1181 [2020] ). Defendant's remaining allegations of ineffective assistance of counsel lack merit (see generally People v. Baldi , 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 [1981] ; People v. Burgess , 159 A.D.3d 1384, 1385, 73 N.Y.S.3d 311 [4th Dept. 2018], lv denied 31 N.Y.3d 1115, 81 N.Y.S.3d 375, 106 N.E.3d 758 [2018] ). In short, we conclude that "the evidence, the law, and the circumstances of [this] particular case, viewed in totality and as of the time of the representation, reveal that [defense counsel] provided meaningful representation" ( Baldi , 54 N.Y.2d at 147, 444 N.Y.S.2d 893, 429 N.E.2d 400 ; see generally People v. Ross , 118 A.D.3d 1413, 1415-1416, 988 N.Y.S.2d 756 [4th Dept. 2014], lv denied 24 N.Y.3d 964, 996 N.Y.S.2d 223, 20 N.E.3d 1003 [2014] ).
All concur except Carni, J., who is not participating.