Opinion
881 KA 21-00476
12-23-2021
The PEOPLE of the State of New York, Respondent, v. Kysean STROUD, Defendant-Appellant.
CONNORS LLP, BUFFALO (TERRENCE M. CONNORS OF COUNSEL), FOR DEFENDANT-APPELLANT. JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
CONNORS LLP, BUFFALO (TERRENCE M. CONNORS OF COUNSEL), FOR DEFENDANT-APPELLANT.
JOHN J. FLYNN, DISTRICT ATTORNEY, BUFFALO (MATTHEW B. POWERS OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., CENTRA, NEMOYER, TROUTMAN, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the judgment so appealed from is affirmed and the matter is remitted to Erie County Court for proceedings pursuant to CPL 460.50 (5).
Memorandum: On appeal from a judgment convicting him upon his plea of guilty of criminal possession of a weapon in the second degree ( Penal Law § 265.03 [3] ) and unlawful possession of marihuana in the second degree (§ 221.05), defendant contends that County Court erred in refusing to suppress physical evidence obtained following a vehicle and traffic stop, as well as statements he made to officers. We reject that contention. The officers testified at a suppression hearing that, on November 27, 2018, they were in a marked patrol vehicle when they smelled an odor of marihuana coming from a car parked by a gas station. Although the officers agreed that there is a difference between the odors of "burnt" and "burning" marihuana, one of the officers testified that he smelled "burnt" marihuana, whereas the other testified that he smelled "burning" marihuana. When the car drove away, the officers followed it in their vehicle and continued to smell the odor coming from the car. Thus, they pulled the car over. Defendant, a passenger in the car, said "come on, man, we are not doing anything wrong, we are just smoking some weed," at which point he handed one of the officers a bag of marihuana. The other officer then observed a gun by defendant's left thigh between the car seat and center console.
Contrary to defendant's contention, the police were justified in stopping the car based on the odor of marihuana alone. It is well established that the police may stop a vehicle if they have "reasonable suspicion that the driver or occupants of the vehicle have committed, are committing, or are about to commit a crime" ( People v. Spencer , 84 N.Y.2d 749, 753, 622 N.Y.S.2d 483, 646 N.E.2d 785 [1995], cert denied 516 U.S. 905, 116 S.Ct. 271, 133 L.Ed.2d 192 [1995] ; see People v. Cator , 159 A.D.3d 1583, 1583-1584, 72 N.Y.S.3d 736 [4th Dept. 2018] ). As the law existed in 2018, a person was guilty of criminal possession of marihuana in the fifth degree, a class B misdemeanor, if he or she possessed burning marihuana inside of a vehicle located on a public highway (see Penal Law former § 221.10 [1]; People v. Jackson , 18 N.Y.3d 738, 742-747, 944 N.Y.S.2d 715, 967 N.E.2d 1160 [2012] ), and thus a police officer, qualified by training and experience, was at the time justified in stopping such a vehicle if he or she detected the odor of marihuana emanating from that vehicle (see generally People v. Chestnut , 43 A.D.2d 260, 261-262, 351 N.Y.S.2d 26 [3d Dept. 1974], affd 36 N.Y.2d 971, 373 N.Y.S.2d 564, 335 N.E.2d 865 [1975] ).
Nonetheless, defendant further contends that the police testimony was inconsistent and incredible, and thus that the court was unjustified in crediting their assertions that they detected the odor of marihuana emanating from the car. Among other things, defendant contends that the officers’ respective testimony concerning what they smelled casts doubt on the accuracy of that testimony. " ‘Great weight must be accorded to the determination of the suppression court because of its ability to observe and assess the credibility of the witnesses, and its findings should not be disturbed unless clearly erroneous or unsupported by the hearing evidence’ " ( People v. Johnson , 138 A.D.3d 1454, 1454, 29 N.Y.S.3d 732 [4th Dept. 2016], lv denied 28 N.Y.3d 931, 40 N.Y.S.3d 360, 63 N.E.3d 80 [2016] ; see People v. Daniels , 147 A.D.3d 1392, 1392, 46 N.Y.S.3d 358 [4th Dept. 2017], lv denied 29 N.Y.3d 1077, 64 N.Y.S.3d 167, 86 N.E.3d 254 [2017] ). In our view, the testimony of the officers "contained only minor inconsistencies, and there is no indication that it was tailored to meet constitutional requirements" ( People v. Williams , 18 A.D.3d 241, 241, 793 N.Y.S.2d 913 [1st Dept. 2005], lv denied 5 N.Y.3d 771, 801 N.Y.S.2d 266, 834 N.E.2d 1276 [2005] ).
Finally, we reject defendant's contention that the officers’ act of stopping the car was based on a " ‘hunch’ or ‘gut reaction’ " after observing an "innocuous act" ( People v. Sobotker , 43 N.Y.2d 559, 564, 402 N.Y.S.2d 993, 373 N.E.2d 1218 [1978] ; cf. People v. Hernandez , 187 A.D.3d 1502, 1504-1505, 131 N.Y.S.3d 456 [4th Dept. 2020] ).
All concur except WHALEN , P.J., and NEMOYER , J., who dissent and vote to reverse in accordance with the following memorandum: We respectfully dissent. We agree with defendant that County Court erred in denying that part of his omnibus motion seeking suppression of all evidence seized or discovered by police officers following the officers’ stop of a vehicle in which defendant was a passenger. We would therefore reverse the judgment, vacate the plea, grant that part of the motion seeking to suppress the evidence seized or discovered by the police following the stop, and dismiss the indictment. It is well settled that, although the defendant bears the ultimate burden of proving that suppression is warranted, the People bear the initial burden of showing the legality of the police conduct in the first instance (see People v. Berrios , 28 N.Y.2d 361, 367, 321 N.Y.S.2d 884, 270 N.E.2d 709 [1971] ; People v. Dortch , 186 A.D.3d 1114, 1115, 128 N.Y.S.3d 768 [4th Dept. 2020] ). In reviewing a determination of the suppression court on whether the People have met that initial burden, we generally must accord "great weight" to the court's decision "because of its ability to observe and assess the credibility of the witnesses, and its findings should not be disturbed unless clearly erroneous" ( People v. Stokes , 212 A.D.2d 986, 987, 623 N.Y.S.2d 55 [4th Dept. 1995], lv denied 86 N.Y.2d 741, 631 N.Y.S.2d 622, 655 N.E.2d 719 [1995] ; see People v. Mejia , 64 A.D.3d 1144, 1145, 882 N.Y.S.2d 621 [4th Dept. 2009], lv denied 13 N.Y.3d 861, 891 N.Y.S.2d 695, 920 N.E.2d 100 [2009] ; see generally People v. Prochilo , 41 N.Y.2d 759, 761, 395 N.Y.S.2d 635, 363 N.E.2d 1380 [1977] ). That deference is not absolute, however, inasmuch as we also have the "fact-finding authority to determine whether police conduct was justified" ( People v. Lopez , 149 A.D.3d 1545, 1547, 54 N.Y.S.3d 789 [4th Dept. 2017] ; see also People v. McRay , 51 N.Y.2d 594, 605, 435 N.Y.S.2d 679, 416 N.E.2d 1015 [1980] ) as well as the responsibility, by "careful exercise of [our] jurisdiction, in reviewing the evidence, [to] effectively curtail [any] alleged abuses" ( Berrios , 28 N.Y.2d at 369, 321 N.Y.S.2d 884, 270 N.E.2d 709 ).
Here, contrary to the conclusion of the suppression court, we conclude that "the significant inconsistencies and gaps in memory ... [in] the testimony of the police officers who testified at the hearing bear negatively on their overall credibility" ( People v. Rhames , 196 A.D.3d 510, 513, 149 N.Y.S.3d 550 [2d Dept. 2021] [internal quotation marks omitted]). Neither of the two officers who testified could recall with clarity any of the details of their stop of the vehicle in which defendant was a passenger, with one officer acknowledging that the only thing that he could recall was that he "smelled mari[h]uana." The officers disagreed whether that smell was of burnt or burning marihuana. Inasmuch as both officers testified that they each had conducted innumerable traffic stops where marihuana was involved, their inability to recall further details regarding this particular stop undermines the reliability of the officers’ testimony. We therefore conclude that, because the lapses in the officers’ memory of the stop render their testimony unworthy of belief, the People failed to meet their burden of coming forward with sufficient evidence to establish the legality of the police conduct in the first instance (see generally Berrios , 28 N.Y.2d at 369, 321 N.Y.S.2d 884, 270 N.E.2d 709 ).