Opinion
No. 96 KA 20-01193
03-15-2024
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT, v. LONNIE TOWNSEND, DEFENDANT-APPELLANT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT. SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
JULIE CIANCA, PUBLIC DEFENDER, ROCHESTER (CLEA WEISS OF COUNSEL), FOR DEFENDANT-APPELLANT.
SANDRA DOORLEY, DISTRICT ATTORNEY, ROCHESTER (MERIDETH H. SMITH OF COUNSEL), FOR RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, BANNISTER, OGDEN, AND GREENWOOD, JJ.
Appeal from a judgment of the Supreme Court, Monroe County (Thomas E. Moran, J.), rendered September 2, 2020. The judgment convicted defendant upon a guilty plea of criminal possession of a weapon in the second degree.
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.
Memorandum: On appeal from a judgment convicting defendant upon his plea of guilty of criminal possession of a weapon in the second degree (Penal Law § 265.03 [3]), defendant contends that the conviction is unconstitutional in light of the United States Supreme Court's decision in New York State Rifle & Pistol Assn., Inc. v Bruen (597 U.S. 1 [2022]). Defendant failed to raise a constitutional challenge before the trial court, however, and therefore any such contention is unpreserved for our review (see People v Jacque-Crews, 213 A.D.3d 1335, 1335-1336 [4th Dept 2023], lv denied 39 N.Y.3d 1111 [2023]; see generally People v Davidson, 98 N.Y.2d 738, 739-740 [2002]; People v Reinard, 134 A.D.3d 1407, 1409 [4th Dept 2015], lv denied 27 N.Y.3d 1074 [2016], cert denied 580 U.S. 969 [2016]). Contrary to defendant's contention, his "challenge to the constitutionality of [his conviction under the] statute must be preserved" (People v Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408 [2006], rearg denied 7 N.Y.3d 742 [2006]; see People v Cabrera, __ N.Y.3d __, __, 2023 NY Slip Op 05968, *2-7 [2023]). We decline to exercise our power to review defendant's constitutional challenge as a matter of discretion in the interest of justice (see CPL 470.15 [3] [c]).
Defendant further contends that Supreme Court erred in refusing to suppress the physical evidence found in his vehicle because the police lacked probable cause to search the vehicle. We reject that contention. The record establishes, and defendant does not dispute, that the police were entitled to stop his vehicle based on an observed violation of the Vehicle and Traffic Law (see People v Ricks, 145 A.D.3d 1610, 1610-1611 [4th Dept 2016], lv denied 29 N.Y.3d 1000 [2017]; see generally People v Robinson, 97 N.Y.2d 341, 349 [2001]; People v Binion, 100 A.D.3d 1514, 1515 [4th Dept 2012], lv denied 21 N.Y.3d 911 [2013]).
Furthermore, we conclude that, after stopping the vehicle, the police had probable cause to search it. At the time that the stop was conducted in 2019, it was "well established that [t]he odor of marihuana emanating from a vehicle, when detected by an officer qualified by training and experience to recognize it, [was] sufficient to constitute probable cause" to search a vehicle (People v Cuffie, 109 A.D.3d 1200, 1201 [4th Dept 2013], lv denied 22 N.Y.3d 1087 [2014] [internal quotation marks omitted]). A police officer testified at the suppression hearing that he was familiar with the smell of marihuana based on his "on-the-job experience," and that he detected that odor emanating from the vehicle as he approached it (see People v Wright, 158 A.D.3d 1125, 1126-1127 [4th Dept 2018], lv denied 31 N.Y.3d 1089 [2018]; People v Mack, 114 A.D.3d 1282, 1282 [4th Dept 2014], lv denied 22 N.Y.3d 1200 [2014]; Cuffie, 109 A.D.3d at 1201). We discern no basis to disturb the court's credibility assessments, which are entitled to great deference, because "[n]othing about the [challenged] testimony was unbelievable as a matter of law, manifestly untrue, physically impossible, contrary to experience, or self contradictory" (People v Walker, 128 A.D.3d 1499, 1500 [4th Dept 2015], lv denied 26 N.Y.3d 936 [2015] [internal quotation marks omitted]; see generally People v Prochilo, 41 N.Y.2d 759, 761 [1977]; People v Bush, 107 A.D.3d 1581, 1582 [4th Dept 2013], lv denied 22 N.Y.3d 954 [2013]).
Although the recently-enacted Penal Law § 222.05 (3) states that in "any criminal proceeding," including suppression hearings, no finding of probable cause shall be based solely on evidence of the odor of cannabis, that statute does not apply retroactively (see People v Pastrana, __ N.Y.3d __, __, 2023 NY Slip Op 05966, *2-3 [2023]; People v Vaughn, 203 A.D.3d 1729, 1730 [4th Dept 2022], lv denied 38 N.Y.3d 1036 [2022]), and a pending direct appeal does not "constitute a 'criminal proceeding' to which [that] statute applies" (People v Kuforiji, 209 A.D.3d 499, 500 [1st Dept 2022], lv denied 39 N.Y.3d 986 [2022]; see People v Fabien, 206 A.D.3d 436, 437 [1st Dept 2022], lv denied 39 N.Y.3d 985 [2022]).