Opinion
370 3614N/11.
03-03-2016
The PEOPLE of the State of New York, Respondent, v. Rashawn SMITH, Defendant–Appellant.
Seymour W. James, Jr., The Legal Aid Society, New York (William B. Carney of counsel), for appellant. Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), for respondent.
Seymour W. James, Jr., The Legal Aid Society, New York (William B. Carney of counsel), for appellant.
Cyrus R. Vance, Jr., District Attorney, New York (Sheryl Feldman of counsel), for respondent.
Opinion
Judgment, Supreme Court, New York County (Renee A. White, J. at suppression hearing; Laura A. Ward, J. at plea and sentencing), rendered August 27, 2012, convicting defendant of criminal possession of a controlled substance in the fifth degree, and sentencing him, as a second felony drug offender, to a term of six months, concurrent with five years' probation, unanimously affirmed.
Initially, we find that the record does not establish a valid waiver of defendant's right to appeal. However, we find that the court properly denied defendant's suppression motion.
Defendant asserts that the officers' initial contact with defendant constituted at least a common-law inquiry, and that it was not supported by the requisite founded suspicion of criminality. Defendant's general arguments on probable cause failed to preserve this issue (see People v. Tutt, 38 N.Y.2d 1011, 384 N.Y.S.2d 444, 348 N.E.2d 920 1976 ), and the court did not “expressly decide[ ]” (CPL 470.052 ) it (see People v. Turriago, 90 N.Y.2d 77, 83–84, 659 N.Y.S.2d 183, 681 N.E.2d 350 1997 ). We decline to review this claim in the interest of justice.
As an alternative holding, we reject it on the merits. Defendant was smoking what appeared to an officer, based on his experience and training, to be a cigar that had been modified for the purpose of smoking marijuana. This provided, at a minimum, a founded suspicion of criminality justifying a common-law inquiry (see People v. Brown, 308 A.D.2d 398, 764 N.Y.S.2d 430 1st Dept.2003, lv. denied 1 N.Y.3d 595, 776 N.Y.S.2d 227, 808 N.E.2d 363 2004 ), even though, from his vantage point, the officer could not determine with certainty whether defendant was smoking marijuana or an ordinary cigar. After defendant dropped the “blunt,” which the officer confirmed to be marijuana by its odor, the police had probable cause for defendant's arrest.
Regardless of whether defendant's behavior at the precinct satisfied the required predicate for a strip search (see People v. Hall, 10 N.Y.3d 303, 310–311, 856 N.Y.S.2d 540, 886 N.E.2d 162 2008, cert. denied 555 U.S. 938, 129 S.Ct. 159, 172 L.Ed.2d 241 2008 ), the cocaine recovered from defendant was not the product of such a search. When the police found drugs in defendant's shoe, this was still within the scope of an ordinary search incident to arrest (see People v. Vega, 56 A.D.3d 578, 580, 871 N.Y.S.2d 146 2d Dept.2008, lv. denied 12 N.Y.3d 763, 876 N.Y.S.2d 714, 904 N.E.2d 851 2009 ), which had not yet progressed to a strip search.